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THE ORIGIN AND GROWTH 

OF THE 

AMERICAN CONSTITUTION 



THE ORIGIN AND GROWTH 

OF THE 

AMERICAN CONSTITUTION 

^n ]^ijBftorical Creatine 



IN WHICH THE DOCUMENTARY EVIDENCE AS TO THE MAKING OF 
THE ENTIRELY NEW PLAN OF FEDERAL GOVERNMENT EM- 
BODIED IN THE EXISTING CONSTITUTION OF THE UNITED 
STATES IS, FOR THE FIRST TIME, SET FORTH AS A 
COMPLETE AND CONSISTENT WHOLE 



By HANNIS TAYLOR 

Hon. LL.D. of the Universities of Edinburgh and Dublin 

Formerly Minister Plenipotentiary of the United States to Spain ; author of " The 

Origin and Growth of the English Constitution" ; "International Public 

Law " ; "Jurisdiction and Procedure of the Supreme Court of 

the United States " ; " The Science of Jurisprudence " 

{presented to the Institute of France, 

March 13, igog) 



" Nee temporis unius, nee hominis esse consdtutionein Reipublicae." 

— CiCHRO. 

"And thus it comes to pass that Magna Carta, the Aets of the Long 
Parliament, the Declaration of Rights, the Declaration of Independence, and 
the Constitution of 1787 constitute the record of an evolution." — Brantly. 

" History is studied from documents. Documents are the traces which have 
been left by the thoughts and actions of men of former times. . . There is no 
substitute for documents : no documents, no history." — Ch.-V. Langi-Ois. 

" Under every shell there was an animal, and behind every document 
there was a man." — Tainb. 



BOSTON AND NEW YORK 

HOUGHTON MIFFLIN COMPANY 

(Zl)t titoexsibt J^xt0 Cambciiige 

1911 

a-- 



'^'^ 3 



COPYRIGHT, 1911, BY HANNIS TAYLOR 
ALL RIGHTS RESERVED 

Published June iqii 






TO MY BEST FRIEND 

flr^P Wife 



PREFACE 



A LONG time has elapsed since the author undertook to draw out "The 
Origin and Growth of the English Constitution," within the Hmits of two 
octavo volumes, the first of which is in the eighth edition, the second in the 
fourth. The very cordial reception given to that work throughout the Eng- 
lish-speaking world and beyond it naturally suggested a sequel to be entitled 
"The Origin and Growth of the American Constitution," which has been 
completed on the same plan. 

After thirty years of effort to unfold the histories of the two closely 
related constitutions as one progressive development, the author was 
blessed with a piece of good fortune which has more than requited all 
the labor bestowed. That good fortune consisted of the unearthing of a 
priceless document, very near the surface, which has cast a bright light into 
what was heretofore a very dark place. It explains for the first time the 
real history of the invention of that marvelous system of government, 
partly federal and partly national, given to the world by the Federal Con- 
vention at the close of its labors at Philadelphia on September 17, 1787. 
Beyond that point the influence of the document in question does not 
extend, — except in one important particular it sheds no new light on the 
after history. So far as this book is concerned, it is a mere episode, simply 
one link in a long chain of causation presented herein as a connected whole. 
It is, however, a great thing to know for certain that the most notable of _ 
all political inventions had a personal inventor ; that the entirely unique 
and path-breaking creation embodied in the American Constitution came 
into being^in a perfectly normal way ; that its birth was neither mythicar 
^r m i raculou s. Beginning upon that sane basis an effort has been made 
to unfold the growth of that Constitution according to the Historical 
Method, which regards all law, public and private, as a living and growing 
organism that changes as the relations of society change. When that 
method is applied to such data as are contained in printed documents, the 
growth of constitutions may be worked out by processes almost as exact 
as those employed in physical science. As Bishop Stubbs has happily ex- 
pressed it: " I confess that to me, as an old investigator, a good deal of the 
accepted theory of continuous history, in this region, at least, of history, 
seems to rest on arguments as sound, within its own material and area, as 



viii PREFACE 

those on which Copernicus and Kepler worked out their astronomical con- 
clusions." 

Never in the constitutional life of any people has the organic develop- 
ment been so vast and rapid as that which has taken place here since the 
existing Federal Constitution went into effect. During the very short 
period in which the thirteen scattered communities that fringed our 
Atlantic seaboard toward the close of the seventeenth century have been 
expanding across the continent, the dissolving views of change have fol- 
lowed each other like the pictures in a panorama.^ In expanding with that 
expansion, in adapting itself to the changed relations resulting there- 
from, the American Constitution has developed an elasticity, a growing- 
power entirely beyond the cumbrous process of amendment its terms 
provide. When the Thirteenth, Fourteenth, and Fifteenth Amendments, 
involving a single subject-matter, are considered, as they should be, as 
a single transaction, the fact remains that the Constitution of the United 
States has been amended in a formal way only once since 1804, a period of 
one hundred and seven years. And yet during all that time it has been 
passing rapidly, despite its rigid and dogmatic form, through a marvelous 
process of unparalleled development, chiefly through the subtle agency of 
judge-made law ever flowing from a generous fountain, the Supreme Court 
of the United States.^ 

The outcome of our organic development, registered as it is in writ- 
ten constitutions and in the vast and unwieldy mass of judge-made 
law through which they have been interpreted, is an indivisible whole 
which cannot be mastered piecemeal, — it cannot be clearly expounded 
as a series of broken and disjointed fragments. To the mind that can- 
not deal with our complex body of law, state and federal, as a living 
and growing organism, its real meaning must forever remain a sealed 
book. Difficult as the problem is, the task is somewhat lightened by the 
fact that the period of growth to be mastered embraces less than a cen- 
tury and a quarter, a period whose history is profusely illustrated by 

^ " Our development has run so fast and so a vital interpretation of." Woodrow Wil- 

far along the lines sketched in the earlier day son, Address before American Bar A^socia- 

of constitutional definition, has so crossed tion, August 31, 1910. 
and interlaced those lines, has piled upon ^ An inspection of the annotated Consti- 

them such novel structures of trust and tution in Appendix xx, will disclose the 

combination, has elaborated within them a fact that it has been construed by the Su- 

life so manifold, so full of forces which preme Court in nearly fourteen hundred I 

transcend the boundaries of the country cases, which, if printed separately in the 

itself and fill the eyes of the world, that a official form, would fill about fifteen volumes 

new nation seems to have been created of the Reports, 
which the old formulas do not fit or afford 



PREFACE ix 

a series of documents, all of which are now accessible. There is no longer 
a place for the withering legends of supernaturalism, or for myths and 
traditions that defy the ordinary rules of common sense. 

M. Lenotre — a worthy representative of that school which has de- 
throned romanticism in every branch of French literature — has said : 
"History, as it has too long been written, is similar to stage scenery when 
seen from the body of a theatre. Everything is in perfect order, every- 
thing is logical and in its place, everything appears to be solid and real — 
provided you do not go behind the scenes, that is to say, provided you do 
not study the facts in the heaps of authentic documents stored in the 
record office. For if you investigate, you will discover that the building 
has only a front, and that it is kept upright only by the aid of cords and 
pegs." The student of American constitutional history has no reason to 
fear to go behind the scenes, — the real facts as attested by the docu- 
ments are quite as wonderful as anything we have been accustomed to 
believe. In the light of the real facts as attested by the documents, an 
attempt has been made herein to outline, with frequent elaborations, the 
origin and growth of the American Constitution in such a way as to 
enable every American citizen, layman as well as lawyer, to read within 
narrow limits the entire history of the wonderful Constitution under 
which he lives. 

Two editions of the epoch-making document to which reference has 
been made, with the author's commentary upon it, have been pubUshed 
by Congress, in an unusual form, and spread broadcast. In that regard 
the author is indebted to his good friends, the Hon. Thomas H. Carter, the 
able and distinguished United States Senator from Montana, who has 
given special study to the subject; and to the Hon. William E. Chandler, 
formerly United States Senator from New Hampshire, and Secretary of 
the Navy, whose brilliant and incisive mind is ever open to new revela- 
tions. 

Washington, D. C, 
November, 1910. 



CONTENTS 

CHAPTER I 

INTRODUCTORY 

Sources of English and American Constitutions only recently explored .... i 
Tocqueville, 1835; his description of the "wholly novel theory"; Von Hoist, 1875 . 2 
Ridicules the "Inspiration Theory"; fails to examine sources; Bryce, 1888, scope 

of work defined 3 

Failure to recognize originality of new federal system 4 

No federal principle derived from England; fault of American historical scholarship; 

Federal Convention secret as masonic lodge 5 

Seal only partially broken in 1818; full record not published until 1 841 ; Story's com- 
mentary, 1840; only a colorless statement 6 

George Ticknor Curtis, 1854; Pelatiah Webster's call for a "Continental Conven- 
tion," 1781 7 

Curtis's misty platitude; Bancroft, 1882; reference to paper of February 16, 1783; 

failure to grasp its meaning 8 

His so-called "Connecticut plan"; far afield as to Pinckney plan; study of American 

Constitution just begun 9 

First Constitution servile copy of ancient type of league; drafted by Franklin and 

Dickinson; within ten years great invention made; absurd theory of its origin . 10 
Bancroft's rhapsody; was the invention made after the Convention met? . ... 11 
A preposterous assumption ; only three plans taken to Convention ; plans of Madison 

and Pinckney instantly presented; plans identical in all vital particulars ... 12 
Were they drawn from a common source? epoch-making invention of February 16, 

1783 13 

Madison's testimony; imperfect records of votes and debates 14 

Full text might disclose frequent reference to Webster; only a vacuum to be filled . 15 
"History is studied from documents"; work of the master builders; need no fame 
that belongs to another 16 

CHAPTER n 

THE GREAT DISCOVERY IN MODERN POLITICAL SCIENCE 

Evolution and conscious creation contrasted ; why the states should be first studied ; 

Taney's definition of state sovereignty 18 

Consolidated Kingdom of England; offspring compared with parent 19 

Sources of American federal ideas ; requisition system ; our first Federal Constitution 20 

Our second Federal Constitution; "the wholly novel theory " '. . 21 

Common basis of three prearranged plans; Madison and the Virginia plan ... 22 

Pinckney's " system "; Hamilton's " full plan " 23 

From what common source were the plans derived? Pelatiah Webster's paper of 

February 16, 1783 24 

How commerce compels unity of law; Annapolis Convention 25 



Xll CONTENTS 

AddrcM prepared by Hamilton; Federal Convention first proposed by Webster in 

1781 36 

Hi* essay* on trade and finance 27 

niM conlar.t with Con^rcHH; his fitness to deal with the problem of ijrohlems ... 28 
Inventor of federal luxation; supremacy of federal law a corollary; his four novel 

and bahic prineijjIeH 29 

I lis effort to re^ju late trade between the States 30 

FonihliadowH I department of Commerce and Labor; exigencies of the times demanded 

the iiivetitioM 31 

Hitttf^ry of the records of the Federal Convention; seal of secrecy partially broken in 

iHi« 32 

I'itiekni^y'H i)Ian not in the record; why it waH not copied 33 

I'inckney rh^fendefl by jamcs^jn and Nott; h\v> plan submitted to Committee of Detail 34 

New leHtiinony from Wilw>n manuw:rii)tH 35 

I'incknc-y jjreHented only real (jlan; its influence on the Constitution; unofficial 

recordH 36 

The MadiHon Papers, 1841; entire record not published for fifty-four years; Ban- 
croft 'h Ho-(allef I (Connecticut plan 37 

Gondii ionH at the time of Webster's discovery 38 

No tra(c of any other plan at that time; Madison's first "sketch on paper," March 

and April, 1787 39 

W<:bHler'H |):i|)(r spread broadcast, I'"<;bruary 16, 1783; Hamilton and Madison then 

in I'liiladel|;liia; <ff(;ctH of W<;bHter'H initiative 40 

riamilt(»n'H motion of Ajiril 1, 1783; conKn-Hwional action, April 18 and 28; motive 

of Morrin'H rcHi^niation; difft-rence between architect and master builders ... 41 

No draflHMian claiiii(;d to be inv(;nlor 42 

An iiiv<iilioii implicH a jxTHonal inventor; work of the master builders; Randolph; 

Madison; Manon; Wythe 43 

Franklin; Wilson; Morrises; Kinjf; Gerry; Hamilton; Pinckneys; Rutledge; Butler . 44 
EUsworlh; Sh«;rman; I'aterson; Martin, Davie, Spaight, Williamson; need no fame 

not I h(!ir own 45 

Pcrsfuial conduct of I'clatiah Wrbster; his two bugle calls of 1781 and 1783; record 

of Convcnlion a sctalcd book to him 46 

WfbHtcr fir.Hl to defend the new Constitution; refers expressly to his original paper 47 

IIIh reply to " HnilUH " 48 

Weit^Iity refleclionH; canonization of the new Constitution 49 

Webster's republication and aj)peal to posterity 50 

CHAPTER III 

Tllli; EVOLUTION OF THE TYPICAL AMERICAN STATE 

The two An^lo-Saxon migrations; unbroken political development; growth of the 

HnKliwh Ht.al<; in liritain 51 

Substantial identity of two great settlements; Darwin's statement; two migrations 

contrasted 52 

The starting-point; cm7o5 of CjEsar and Tacitus 53 

PogM.v, gr/H, or .s7(W!; four classes; the village community 54 

Boston; the hundred and the hundred court; the state assembly 55 

Military organization; transfer of institutions; period of Teutonic conquest ... 56 

Christianity and the customary laws; the rice or early kingdom 57 

Origin of the modern shire; process of aggregation 58 



CONTENTS xiil 

Tlireefold division broken down after two centuries of struggles; triumph of Wessex 

in 825; Eadgar the Peaceful, 958; work of consolidation 59 

Ancient state becomes modern shire; state assembly survives as shire-moot; germs 

of jury system and representative system 60 

Modem courts of assize; political substructure of the American state 61 

Old-English central organization; elective kingship 62 

Provincial royalty died out; constitution of the Witenagemot ; England and Achaia 63 
Lack of cohesion between central and local powers; feudal tendency to disruption 

checked by God wine; Norman duchy and its dukes 64 

An assembly of magnates 65 

Fall of Harold and triumph of William; William a national king as well as feudal 

conqueror; law of the land and ancient assemblies preserved 66 

Feudalism as a system of tenure; William the Red; Flambard and the growth of 

feudal law; Henry's coronation oath 67 

The Magnum Concilium; the Curia; the Justiciar; Stephen and anarchy; a project 

of reform 68 

Origin of administrative machinery; the period of fusion; royal and popular law . 69 
Henry II and the reign of law; Constitutions of Clarendon, 1164; prac-tice of sum- 
mons; growth of judicial business 70 

Beginning of King's Bench; grand and trial juries; Assize of Arms, 1181 .... 71 
Scutage, 1159; taxation of personal property, 1188; taxation and representation; 

Richard I and taxation 72 

Rise of the three estates; John as a statesman 73 

Loss of Normandy, 1204; council at St. Alban's, August 4, 1213; council at St. Paul's, 

Aug^Jst 25, 1213; meeting at St. E>Jmund's, November, 1214 74 

Great Charter signed, June 15, 1215; chapter 39, "due process of law"; trial by jury 

not guaranteed 75 

Broad construction; chapter 39 embodied in state constitutions 76 

Chapter 39 embodied in Fifth Amendment, and in the Fourteenth 77 

A manifest historical error; results of the Revolutions of 1640 and 1688 .... 78 

Exemption from self-incrimination; Blackstone not Coke the guide 79 

Modern English system embodied in state constitutions; Justice Matthews's correct 

view 80 

Justice Gray's view 81 

Justice Moody's view; origin of representative government; writs of 1213 .... 82 
Writs of 1254; writs of 1265; Great Parliament of 1295; transition from feudal 

council to council of estates; confirmatio cartarum, November 5, 1297 .... 83 
Two stages of growth; Parliament divided into two houses; Sheldonian compact of 

1664 84 

Accession of House of Lancaster; accession of House of York; origin of the great 

courts of law and equity 85 

Equitable jurLv^liction of the Chancellor; origin of courts of assize; powers retained 

by the King in Council 86 

Ordinances; York and Tudor monarchy ; the Star Chamber 87 

From Edward IV to Wolsey; Cromwell's new policy; collai>se of representative 

government on the Continent 88 

English Renaissance; real meaning of the term; reign of monarchy brought with it 

peace; era of discovery and conquest 89 

Stuarts and Revolution of 1640; conflict between conciliar and parliamentary sys- 
tems; two famous trading charters 90 

English title to new world; rule regulating acquisition; James's charter of April 10, 

1606; London Company; Plymouth Company 91 



xiv CONTENTS 

English law the basis; London Company's separate charter of 1609; domains of the 
five southern colonies 92 

Domains of the four northern colonies; domains of the four middle colonies; colonies 
mere corporations created by the Crown 93 

Creation and dissolution of corporations; soil granted as terra regis; revocation of 
charter of London Company, 1624; and of Massachusetts, 1684 94 

The omnipotent Parliament; the royal colonies — Virginia; ordaining power of the 
King in Council 95 

First American representative assembly, 1619; the colony as a reproduction of the 
parent state 96 

The charter colonies — Massachusetts; her charter a recognition of preexisting con- 
ditions 97 

Charters of Rhode Island and Connecticut retained; the proprietary system — 
Maryland; a county palatine 98 

Primary plan supplanted by representative system; Carolina, and Locke's Funda- 
mental Constitutions; England's strength as a colonizing nation 99 

Political aggregation in America; county and township as agents of local government 100 

In the northern colonies the township, in the southern the county, the active agent; 
composite system in middle colonies; the township in different aspects; the parish 
and its vestry lOI 

Townships in New England; manors in Maryland 102 

Manors in New York; Virginia parishes; America's first contribution to political 
science 103 

Invalidity of colonial statutes; state constitutions of 1776; earliest cases declaring 
state statutes void 104 

Constitutional limitations on legislative power; invention originated with the states; 
American theory of colonial rights 105 

The Crown regarded as the only tie that bound the colonies to England; English 
theory of colonial rights 106 

Out of the conflict grew the war of the Revolution 107 

CHAPTER IV 

FEDERALISM AS A SYSTEM OF GOVERNMENT 

Effects of geography on federation; Britain and America contrasted; a federal union 
defined loS 

An ideal federal government; four notable approaches; confederated states; com- 
posite states; the Greek city-commonwealth 109 

Aristotle's "Constitutions"; the Greece of Polybios; Achaian League no 

Federal taxes and requisition system; no conscious influence on American federalism; 
founders only familiar with Teutonic leagues in 

All operated on states or cities, not on individuals; modern state as the nation; Teu- 
tonic tribes gathered into nations 112 

Tribal sovereignty; territorial sovereignty the outcome of "the process of feudaliza- 
tion" 113 

Form assumed by the monarchy in France reproduced; how federal unions are classi- 
fied; Staatenbund 114 

Swiss Confederation; Germanic Confederation I15 

United Provinces of the Netherlands; States-General and its powers; criticism of 

Grotius; of the Abbe Mably 1 16' 

Stadtholder and his powers; "Observations" of Sir William Temple 117 



CONTENTS XV 

CHAPTER V 

AMERICAN CONFEDERATIONS FROM 1643 TO 1 777 

United Colonies of New England 119 

Albany convention of 1684; Albany meeting of 1694; Penn's plan of 1697; plan of 
1721; Clinton's proposals of 1744 and 1752 120 

Albany meeting of 1754; Madison's statement of its purpose; Franklin's statement 121 

Plan of Daniel Coxe 122 

Nothing new proposed ; effects of the growth of population on federation ; New France ; 
the struggle for expansion 123 

Effects of French and Indian War upon the cause of union; Stamp Act Congress, 
October 7, 1765 124 

First Continental Congress, September, 1774; drastic English legislation .... 125 

Action of Virginia burgesses; leaders of the Congress 126 

Declaration by Boston and other towns, September 9; no talk of revolution at outset; 
Galloway's plan of confederation 127 

Declaration of Rights and Liberties, October 14; "The Association," October 20 . 128 

Address to people of Great Britain, October 21 ; petition to King, October 26; another 
Congress in following May; Second Continental Congress, May, 1775 .... 129 

Articles of Confederation drafted by Franklin, July, 1775; second draft by Dickinson, 
July, 1776; debate begun July 22 130 

Fragment of debate preserved by Jefferson; original draft of Article xi; comments 
by Chase; by John Adams 131 

Comments by Wilson; by Witherspoon; Article xvii; comments by Chase; by 
Franklin 132 

Comments by Witherspoon; by Rush; by Hopkins; Maryland's influence upon the 
land cessions to United States 133 

"Instructions" to her delegates; Virginia, New York, Massachusetts, and Connecti- 
cut yield 134 

Northwest territory vested in new nationality; sterility of designers of first Constitu- 
tion; the principle of inter-citizenship 1 35 

First Constitution devoid of taxing power; purse and sword retained by the states; 
Congress possessed hardly more than advisory power 136 

Hamilton's graphic picture 137 

CHAPTER VI 
PELATiAH Webster's invention of February i6, 1783 

First Federal Constitution failed from a lack of taxing power; no real reform ever pro- 
posed prior to 1783 139 

Mr. Bland's summing-up, January 27, 1783; one hundred and forty years of sterility; 
servile copying; Webster proposed to abolish ancient system as early as 1781 . . 1 40 

His exposure of the weaknesses of the first Constitution 141 

"Absurd doctrine of rotation"; "ten times easier to form a new constitution than to 
mend the old one" 142 

Plan of February 16, 1783, published at the very doors of Congress; Webster's path- 
breaking proposal 143 

"Supreme authority" must not depend on "thirteen popular assemblies"; must 
levy duties on imports 144 



xvi CONTENTS 

Prejudice in favor of exclusive state taxation deep-rooted; Webster's defense of his 

new theory of federal taxation 145 

A completely organized government a necessity; division of a federal state into three 

departments; Montesquieu and single states 146 

Definition in Virginia's Bill of Rights; first Constitution vested all power in a one- 
chamber assembly; a bicameral federal legislature; Jefferson's indorsement . • ^47 
A President surrounded by a cabinet council ; ministers to sit in Congress without the 

right to vote; the Swiss Executive 148 

Ministers do not resign after adverse vote; American Speaker armed with abnormal 

powers; right of cabinet to initiate legislation 149 

Webster first proposed a two-chamber Federal Congress; his reasons for the unpre- 
cedented change 150 

How the delegates were to be chosen; old one-term rule denounced; Congress to be 

armed with all necessary powers 151 

Federal judiciary outlined 152 

A Supreme Court with jurisdiction original and appellate; inferior federal courts of 

law and equity I53 

Webster defined supremacy of federal law; remedy when resisted by force in any 

state; reserved rights of states carefully guarded 154 

Webster's statement far more ample than Tenth Amendment; great invention syn- 
chronizes with failure of quota system 155 

Lack of power in Congress to levy a tax on imports; Rhode Island's veto . . . . 156 

Death knell of Confederation 157 

A benefactor in disguise; Continental Congress in 1783; its decadence 158 

Only twenty-seven delegates from eleven states; its wanderings 159 

Madison, Hamilton, and Pinckney 160 

Webster and Hamilton as financiers and economists; Professor Sumner describes their 

relations; how Webster forced the calling of the Federal Convention of 1787 . . 161 
Charles Pinckney comes upon the scene; Madison, Hamilton, and Pinckney marched 
behind Webster 162 

CHAPTER VII 

THE FEDERAL CONVENTION OF 1 787 AND ITS WORK 

Attempts to solve a mighty problem with main factor omitted; a miracle of finance; 

the financier of the Revolution 164 

Hamilton's move for Federal Convention stimulated by Webster; Congress declined 

to take the lead; joint commissioners of Virginia and Maryland, 1785 .... 165 

State tariffs of 1785 166 

Annapolis Convention of 1786; Federal Convention of 1787; its meeting forced by 

events 167 

Imperious necessities of commerce and finance; the jealous spirit of local self-interest 168 

Josiah Tucker's statement; isolation surrounding Webster's invention 169 

Adam Smith and his work; alternatives presented to Convention; summary . . . 170 

Convention worked only eighty-six days 171 

Absurdity of inspiration theory; the four new principles; relation between architect 

and master builders 172 

Convention did not meet for business on May 14; Washington's inspiring words; 

deputies present on May 25 173 1 

Committee to prepare standing rules; Virginia plan presented May 29; Madison's 

first sketch on paper 1741 



CONTENTS xvii 

Randolph's statement; only Pinckney and Hamilton drafted finished plans . . . 175 
Pinckney's plan or "system " presented May 29; copy of lost Pinckney plan furnished 

in 1818 176 

Gravamen of Madison's criticism; Jameson and Nott's refutation; Pinckney's the 

version par excellence; Madison's ideas of reform 177 

Provincial spirit in Virginia; the great invention not gradually evolved in Conven- 
tion; its work "cut and dried" beforehand 178 

Discussion in Committee of the Whole began May 30; division of the federal head; 

division of Congress into two houses 179 

Suffrage and representation; scope of legislative power; use of force against a state; 

organization of the executive power ,180 

To consist of a single person; powers of the Executive 181 

To be chosen by electors; the veto power; organization of judiciary 182 

One supreme with inferior tribunals; tenure and selection of judges 183 

Organization of the legislature; combination of state and national governments . 184 

States, as such, recognized; suffrage in the popiilar branch; larger states prevail . 185 
Senators to be apportioned according to population; new plan of federal government 

reported June 13 in the form in which Madison and Pinckney had restated it . 186 

Text of resolutions 187 

"The scheme is itself totally novel," declared Lansing 189 

Injustice to the smaller states; they form a coalition; New Jersey plan their counter- 
blast 190 

How it was trampled upon; the Hamilton plan 191 

Race-traits of the soldier-statesman; special aptitude for economics and finance; 

followed Webster's initiative 192 

His "full plan"; more voluminous than that of Pinckney; why it offended; only two 

plans considered 193 

Nineteen resolutions considered seriatim; the legislature to consist of two branches 194 
Claim of large states stated by Wilson; that of small states by Ellsworth . . . . 195 
A crisis reached on June 28; Madison adds fuel to the flame; the Connecticut com- 
promise 196 

Davie of North Carolina supports it , 197 

Compromise reported on July 5; concession as to representation of slaves . . . . 198 
Direct taxation and representation; North CaroUna gives victory to smaller states; 

twenty- three resolutions referred to Committee of Detail 199 

John Rutledge, chairman; a great orator 200 

Ellsworth as arbitrator; importance of Pinckney's "system"; Randolph's tentative 

draft 201 

Professor Jameson's discovery; final draft by Wilson 202 

Judge Nott's comments; what Pinckney's vindication teaches; report of Committee 

of Detail, August 6 203 

Special committees; choice of an executive; a single person to be chosen .... 204 
Electoral colleges defined; Vice-President to be President of Senate; Committee on 

Style reported September 12 205 

The last day, September 17; FrankUn's appeal; Washington addresses Convention 

for first time 206 

Result reported to Congress, September 2,0; opposition to the commerce clause . . 207 
Negotiations between Jay and Gardoqui, 1785 ; Delaware first to ratify, December 7, 

1787; Pennsylvania and New Jersey, same month; Georgia, January, 1788 . . 208 
Connecticut same month; the struggle in Massachusetts; warning to Samuel Adams; 

Fisher Ames 209 

Hancock; battle won February 6; "The Federalist," 1788 210 



xviii CONTENTS 

Maryland ratified, April 26; South Carolina, May 23; Pinckney and Lowndes in 

state legislature 21 1 

Convention organized. May 13; New Hampshire ratified, June 21 212 

Virginia, June 25; opposition weakened by act of South Carolina; Patrick Henry; 

George Mason 213 

Pendleton; Randolph; Madison; federal judiciary assailed; Marshall 214 

Appeal to Virginia debtors; Henry's defiant outcry 215 

Unconditional ratification; New York ratified, July 26; the "Federal Farmer" . . 216 
Convention met at Poughkeepsie, June 17; debate opened by Livingston; Hamilton; 

Bill of Rights offered 217 

Madison's letter; Hamilton's triumph; North Carolina ratified, November 21, 1789 218 

Rhode Island, May 29, 1790; summary 219 

Congress notified of action of nine states, July 2, 1788; choice of electors ordered, 
September 13 ; votes for President and Vice-President counted, April 6; Washington 

became seat of government, 1800 220 

CHAPTER VIII 

THE FIRST TWELVE ARTICLES OF AMENDMENT 

New Constitution not prefaced by a bill of rights; lack supplied by a series of amend- 
ments proposed by the states; varying interpretation of Magna Carta .... 222 
Supplemented by modern principles; Randolph and Gerry demand amendments . 223 

Fears of Pelatiah Webster; Lee's demand for a bill of rights 224 

Subject of amendments in state conventions; the Massachusetts precedent; com- 
mended by Madison; composition of First Congress 225 

Organization of the judiciary; Supreme Court; District Courts 226 

Circuit Courts; Madison leader of the House; administrative machinery .... 227 
Twelve amendments offered June 8, 1789; a Declaration of Rights; ten amendments 

adopted 228 

Preamble; proposed to legislatures, September 25 229 

Religious liberty; Mormon Church; freedom of speech and the press 230 

Jackson's assault trampled on by Webster 231 

Right of petition; right to keep and bear arms; object of Assize of Arms .... 232 
Presser v. Illinois; billeting of soldiers prohibited; Stat. 31 Car. II, c. i; general war- 
rants prohibited 233 

No. 45 of North Briton; Mansfield's judgment 234 

Guarantees of due process of law; perpetuation of the grand jury in federal courts; 

but not in state courts 235 

Exemption from self-incrimination; "due process" traced to Magna Carta . . . 236 

A grave historical mistake; Barron v. Baltimore 237 

Jury trials in criminal cases safeguarded; trials must be speedy and public; English 

criminal trials prior to civil war 238 

After accession of House of Stuart 239 

Right of counsel to confer with prisoner; enumeration of rights of accused in Sixth 

Amendment; rule of interpretation; jury trials in civil cases guaranteed . . . 240 

Hamilton in "The Federalist"; right to have cause submitted 241 

Opinion of judge as to weight of evidence; limit to hostile comments; excessive bail 

and fines prohibited 242 

Article 10 of Bill of Rights reproduced; electrocution not prohibited; modern English 

Constitution as source 243 

An act of over-caution; contention that bill of rights was unnecessary; maxim of 

expressio unius 244 



CONTENTS XIX 

Reserved powers of the states; Marshall on implied powers 245 

States protected against certain suits; Chisholm v. Georgia forced Article xi; Hol- 

lingsworth v. Virginia 246 

Suit by a foreign sovereign; electoral system amended 247 

Menacing conditions arising out of election of 1800; election by the House . . . 248 
Right to count electoral votes; precedents of 1793, 1797, and 1800; Electoral Cora- 
mission Act, January 29, 1877 249 

Electoral Count Act, February 3, 1887; survivors at end of constructive period . . 250 

Hamilton; trial of Burr for treason; constructive treason abolished 251 

Oneness of English and American constitutional law 252 

CHAPTER IX 

AFRICAN SLAVERY AND ITS CONSEQUENCES 

Slavery in all the colonies prior to the Revolution; Mansfield in Sommersett's case; 

case of Dred Scott 253 

Slaves landed by Dutch at Jamestown, 1619; cotton-gin, 1793; three compromises of 

the Constitution 254 

Ordinance of 1787; title to Northwest Territory 255 

All territorial lands declared national domain, 1780; Rufus Putnam; temporary 

government reported by Jefferson, 1784 256 

Jefferson's proposal revived by King in 1785; report by new committee, July 11, 1787 257 

Bancroft's statement; reference in fifth article to consent of Virginia 258 

Tucker's summing-up; text of the famous Ordinance of July 13, 1787 259 

Colonists and constitution of mother state 265 

Marshall explains the relation; Insular Tariff cases, 1900; certain constitutional 

provisions applicable to all territory 266 

Restricted right of suffrage; right of a state to regulate it; death of the old Congress 267 

Passed its last act October 10, 1788; the Ohio Company 268 

Webster's tribute; Madison's criticism; Virginia's noble part 269 

The Northwest dedicated by the South to freedom; Jefferson's plan for the extinction 

of slavery 270 

It failed because of its largeness; the irrepressible conflict; a slave state and a free 

admitted by turns; introduction of foreign territory 271 

The first census, 1790; freemen and slaves; "persons held to service or labor"; 

gradual abolition of slavery in the North; admission of Vermont, 1791 .... 272 
Precedent for admission of Texas; Kentucky admitted in 1792; Teimessee, 1796; 

Ohio, 1803 273 

Louisiana Purchase, 1803; Jefferson's mental difficulty; idea of nationality promoted; 

Article iii of the Treaty of 1803 274 

Province of Louisiana divided, 1804; territory of Missouri orgam2jed June 4, 1812 275 
Civil code based on Code Napoleon; positive law defined; Orleans Territory admitted 

as a state, 1812 276 

Colonial scheme of 1787 a model; attempt to legalize slavery in Indiana Territory; 

admitted as a free state, 1816 277 

Mississippi admitted in 1817; Illinois admitted in 1818; Alabama admitted in 1819 278 
Maine admitted in 1820; the Missouri Compromise, 1820; Jefferson's forebodings; 

battle for slavery to be fought beyond the Mississippi 279 

Suddenness of the conflict; terms of the Missouri Compromise 280 

Missouri admitted in 182 1 ; extreme view of state sovereignty; Federalists and 

Republicans 281 



XK CONTENTS 

llrtiutlliM) mimI li^lTt^rHon MH l0A(1^rii| "orM of (tout! ftidlnuit" iMao . . . jiHi 

Dtiituu iMtH (iiiil VVIiluu, iHjHi AilioiiticiH (iiliuliiril III iH,|t)) Mii'lilmuii li> i>\\,'; I'loiiild 

f^Uil IVniih llto Idbl nlitvit oliilrn itilitiilloil, \H.\^ jH,} 

|*uHi:iP»»liii) idlttMiitl VVt^nl t'loiitld, iHiii; h.^itil hliui(l<:i »uil 'IVoaly of tHiy; li'lorida 

rtt||uil(»Ml ill Ui|f\i 'I'tiHMH (imUmI liy I'tdiU't) lit Spdiii, r/f),) 984 

"'lVK(tt) (iiiil ('iMliiilIri" iiiii< u{Mp\ IVxam t\ w^N HiMtt) Miil)Jn(-t (t) ttiit^ti iHiiuKllonit; 

»(l)l)OH(llluil wllliuiil (ii^fKv . . • , 285 

t'lipiildliiiii lit ilii> Suiidiwi^^l prliir to iN,\o; Iowm uiliiililnt In \H.\t\\ Wim'ouitln In 

|M,|M| Miijiili rtii W'fii fi vli (01 V lot nUiviMv; lia ttoll liiiil lit'oii iiidilr iirr< .... 386 
Wlluiol I'iovIbo, iM,|ri; I'ui' Soil pmly; C'rtllionvitt ttud thp CoinpiomUp of \^$0\ 

(iiiiiti|iti ul t'iiMio (Hill mill oMIio Wlil^H .............. 387 

Hiiiiilt M rt lop« loi bI(>vi> itMiiiory; Iviiliiif io liuy Culm; Kw »»*«»»- NoUmnkw lilll, 1854; 

hiiiiuUin (Uiil f)i|iiiilliM miv^it^l^iitv .....,.,,....,,. jSM 
AtMdtifUti I iiiioliii ) iiiiulu hoitul(«>« (It^lmtt^A of iHa8| Miuut«MutA HUmit1«(l in 1858; 

Ohi^oii itiliiiiKiHt ill iM.su .. I ............... . j8i) 

SwiuiiiiOVi I'li'WMi liw rtiiil iiiiip »*lrtvt< ulrtioa 111 iH.t^u; llir l>rtHl Si'oit ea«P, 1857; wtti 

(lit) («i'l iMiilioilioil ill lltt> Mipmmii (\)niiii\iiiilmM oiipUiiiiiviiidli' . ...... ago 

An rtiU'inpi (o rt|>|ilv ilip vIoiMrlnp uf Sonuut>iiit»tV*tt Ottw; pirn to thp JtirlwHctlon 

W(«))Sioil (« rilidtnii^ .till................ Joi 

roiittHluiioiuility ot (.V\mi>mt\\W pwhwmh? oi [m\w\ ftiyitJvt»-i*l«ve vlwuip; wnniHtency 

ot (tfltli)>oil I « t . I I ,,,,,,.,,,,•,,,,,. , S{i3 

Tliiiioonili Aiiu'ii>li\iriiil , »UBiin»(lvti ftiup of ulrtwiv niit»iiti*»u ..,...,, ay,| 

I illiolii KmiIiM oI K«'|>ii|ill« (III ivdUv; liiri foiKciilloii t'oiiK'r «i|ont> of nt»\V ntttioMtti Uft»l 

ilim oinnuiuM>l iVdi^liis ->)j 

KrtHotlP (ivlmitliHl ill l.'ifu . . ;>);, 

niAni'.K \ 

mXTV i^Ntf. Y»U«a OF r<\NSTrr\1TlON.\l i.Ki>\vni [\Siy\ (>;>> 

S«>vl)n\v IttW w«« |>wrt uf twtUwftUUp . joo 

"t "oimtitntivMia (Of i\v>t ivirtilo, (l\ov til\>\v", lMiuh?>li ronMiUKion jmUuiIIv riiiNoiliod 

ill il\n niinMUoi (I Umi^s pi\H>t>»* ol « lirtimt' rtiiil \>l >;»\>\vth, MMv iMU!«ti(u(ioii!> \>iit»-\>iuo 

ol ov\«tntivM\ .,,,,,,,,,.«.,.,.,,.,.,, §97 
Mow \w Urtvp tt^lvw»u^\ from wwp »tttgt> uf growth t\> «n»>thpr} omiU|M>tpnt l*«rUrt- 

niput rtiul S\nMt>nvo roiut ,,,,,..,,..,..,,.,. »^ 
i'oi\Wiw»» >»iil>|vH » to ittt U\\a\ vpvlwitvu jMnwr; «tn))ji|t)«> Mwwn nation**! ami ivnwindai 

♦iyxiUti \Unt w»ni«p ot union rtt tU«) vMvtm»t . -'ov) 

ISv^ivn*'*' »xt »«irtVf»Vi inthipmti ot int«>i\SMnn»nnlv^ti\«\ .ivH> 

Npw \^xnvH;>ption ^4 twtiot^AUtyi tt«wwi»viii vifvW \^ imlividuAl ri)iht»i the «*i^ \^ coU 

KH^tivi>kn\ ,,.,.,,,,,,,.,....,»,,,,. 301 
Si\tvvvn*> vt>Ai»» \vithv>nt a aMistit\nionrtl rtin«^\uln\«^nt; v^p)H»^tivm tt> «p>v natiotwl 

*kv>ktpn\; rt *v*ntUoin \sM\t«^l<^\«u'v to Ih^ Im«hI \M\ slrtvriv ,,...,».. ^tu 

\V(<»hin4it»vi\V tiUinnvh; \t;oni\txvnV o\\ i«Mrt\; whijiKrv ii\fivmtH"tiiM\ v^f »7^>4 , . » 303 
N»^\itudnv \vi\vUonrttivM\ vvt xtMXy John Avl^nvs rtivd Imviu^U PijwMv^vv; AUcn and 

Spsiitivvw Irtwn, vy\>*4 ,.,,,,., ^U\| 

Attvnvpt t\> \rs'it<rti»v tivtnUvnx of di*\Mt»*ion ^u\t 

Kontnvkv rtiwl Nii^ini** Ko*otinv\M\!*, I7\>v*t; advUtUvnal Kwvtuv^ky HiM^Uutivxtx «>)' K}\if^ ^VH> 

\'t»)in\w K«^vU»tivVUS t;^tM\si t>v M;>v1mM\ >,..,,,,....,, ^^j 

J<irt»m*vvn ttn^ ixsil rtntt\vM ot K^th w^t*i K\>\i)i!«tvrt\» (U\vl thi? tVwiivil vV\s^ .uv*i 

WlimwmV vt«V(\\Hv Ww>«y; In* t<*\hnv h> v-*\^jMxvi<»t*^ tU<p Judioial |v>wt*r . , .u>o 



CONTENTS XXi 

Chn»c'» (loclrinc; JefferHon'n evnuion of mofftl rcHponnlhlllly ... . ^ii 
Hnrtfonl t'onvriuion, 1H14; Nrw l-lnKluiul upikinUiuii to "rcMrittivc m^ii-m"; 

Kcdnalinl oppimilinn to War of iHlJ jlj 

MaHwuliiiM-ttt* ntoriu itMitif; foiivfiuiim at Hartford, IV«<*mlM'r i.s. iHi.j .... ^■^i^^ 

Sfo|M' ol ill* work; tin* voiti' ol JilUMmm; » ll.m^5(•H in t 'oiintitntitm rrcotiiiiU'iKlcil _^t.j 

How tlic i'oi)»|)ira('V W.ik aiiiuliilalcil; Dattict Wrlmtcr'n ((iiniitrtti ,\I5 

Sotilli (arolin.i and iiidlilu atiuii; i.nill a poliiir.d inntic ittlcr 1HJ4; C'alhoiitt \i(i 
Nullituatioii dolincd \>y VVc*lmtt-r; Uayiu-'ii drlmm- Inim-d on Virginia Kcsolulmnn; 

Culluiun'H "too muIiIIi'" rrHlalrnuMil ^ij 

n.tn(|nc-t of A|)ril 1.^, |M,V). J.^knon and Calliuiin; Kcnlon'n coinniriil ,tlH 

(alhoun'ti diNii(;rt;(li>>n ol jtilv, lN,\t ; ntdlilu alion oidinaiu c of Novrrnlici, \H,\J ^\\i) 
Nulliluation i'rot lai\ialion ol DriniduT n; Ait ol M.irt It j, 1HJ3; coinproitliiic 

tarill of M.u«l» j, \H_\_\ 1^20 

Thf diHtrinc of wi crthion; nnUiruation .di.iiidotu-d; a ronntitutioi) uil iiutriinirnt of 

|MT|MMnaI rllu.ny \ji 

Dccl.iiation of tlic Ki^htM of Man; inlltimi r ol Kcntinky and Virginia Ri-milntioiu 3Ji 
iJtxtiiiU' of KfK'nnion hint d«-linc(l alioiii i7i)<^; Jrllrirton'rt virw of it in I7<>.S; ^^)iiiiuy'(( 

outcry in iHi 1 ; Story .md lictuy in iHim> ^jy 

Hartford ('onv<Mition, iHi.j; I'lukcr'ti IM.ukHtone, l8o.'^; JuUne Ruwif, iHj.'s . . . ^\j^ 
I'crHiHtiMU y of tlu- idea thitl a ( onntitntion in a "t-oinpact "; rxtinKtiinlu'd Ity growth 

of national life; antcicdcntH of do(tiinr taken up liy ( alhotin in 1H.17 .... yj^ 

(iarrihon'H urn* ol it in iH.j.^; ( idlioun'n niovr for HK'i|«Miition in 1H.J7 ^j(i 

(alhoun'H view of tlu- ( oiiNtitution; liih rrnolutionii oi January JJ, iK,\,\ . . . . ^\jy 
C'allioun'H fanioutt Mpcci li of Kcbruury 15; Wcbutcr'* reply; (alinain'H l.tni npcci h, 

March .}, 1H50 ;^aH 

Two revolutionary iuov«nuiit«; nuthority of u court of taut rcHorl; itH cxclunivc riKlii 

to dclinc it» jiuimliction ^j<) 

Linroln'n dcclurution, 1K5H; Scward'ii " irrrprcMiible conflict"; cotlUion of unl.iwlid 

forcvH ^;^o 

The i-onilici in the judicial arcim; Murnhull un a doininntinK force; riulii ol .1 roini 

to annul a l.iw ^^i 

Jay'rt deN|iairini4 cry ; iM'o|M' of MarnliaH'H work \\i 

Suprcinat y of fci|«Tal law; t'cnuHylvania cocrted ^^^ 

CohcHH r. Virginia; ( Ixiokri- Nation t>. < Irori^ia \\.^ 

Wonchtcr V. (i«-orniii; I'riatiali VVclihtcr lilaM'd the way for MurHhall; "the nation" 

and " the Aiueiii an ConHtitutioit" ^^i^ 

MarnhaH'ii dclinilion aliidcfi; D.utnioiUh Ccillene ca«* limited liy I, iney .... ^^t» 

Adniirjdty juriMdii tion redelined; certain <pie»iliour« not yet juwliciahle \\y 

Attenij)led necehnion of the Southern Statew; a jM-rlect (If Jtuto ijoverninent ; ( h.oai ler 

(jf (onti-Ht delnieil liy SupicMue ( 'ourt \\H 

Cham- Chief J ur<li<e, Dei cinlier 6, lH<>.j; 'IVxart ti. While, lH(><) \\^^ 

An indiNlrui tilile union dedued . . \,\ii 

Uahin of our new Utilional lile j^l 

CHAPTI-.U XI 

TIIK riVII. WAR AMI:NI)MKNTS 

Civil war Huddenly prec ipitated; Nortli without a pro^ralll^le; recotihtniclion defined jJ4a 
Unity of tlie three amcndmcntH; Thirteenth Aiiicndincnt; ulavery in terriiorieit uliol- 

iHhed, iH'>i .■^43 

Slavery in District of Columbia aboliiihcd, 186a; Enutnciputiun I'ruclunmtion, iHdj; 



xxii CONTENTS 

its legal effect; exemptions from its operation; slavery must be supported by 

local police 344 

Slavery may be upheld or abolished by military occupant; never abolished until 

ratification of Thirteenth Amendment 345 

Liberation of master and slave; Mason's declaration 346 

South's advance in production; a legal person as opposed to a thing 347 

Fourteenth Amendment; an Achaian citizen; Articles of Confederation .... 348 
No primary citizenship prior to Fourteenth Amendment; inquest in Dred Scott case; 

Justice Curtis's view 349 

Solecism in original Constitution; Section i, Fourteenth Amendment; Slaughter- 

House cases 350 

Citizenship not previously defined; Dred Scott case overturned 351 

What privileges the nation must protect; what privileges states must protect; certain 

rights of national citizenship 352 

Motives prompting Fourteenth Amendment; Guthrie's view; a new Magna Carta . 353 

Justice Miller's too narrow view; Marshall's rule 354 

San Mateo County case; Conkling's statement; Justice Field in Railroad Tax cases 355 

Justice Brown in Plessy v. Ferguson; distinctions based on color 356 

Civil Rights cases; persons born "subject to the jurisdiction" 357 

U. S. V. Wong Kim Ark; rule in Calvin's case followed; a corporation a person, not a 

citizen 358 

Power of exclusion; 39th chapter of Magna Carta, 12 15 359 

Confirmatio Cartarum, 1297; Coke's Second Institute, 1632 360 

Blackstone, 1758; influence of reformed English Constitution; Bill of Rights of Vir- 
ginia, 1776 361 

Compulsory self-incrimination abolished; restatements of chapter 39 362 

Genesis of English conception of due process of law 363 

A government of law as distinguished from one of functionaries; Murray v. Hoboken 

Land Co., 1856 364 

A manifest historical error; Davidson v. New Orleans; Hurtado v. California . . . 365 

Lowe V. Kansas; Twining v. New Jersey 366 

Rule of inclusion and exclusion 367 

The effort to narrow federal jurisdiction; a state may abolish grand jury system; may 

alter number of petit jury 368 

An unsound conclusion; importance of our first bills of rights 369 

Prohibition extends to all state acts; Supreme Court guardian of new citizenship . 370 

Old three-fifths rule abolished ; Fifteenth Amendment 371 

Right to vote drawn from state; electors of House of Representatives 372 

Only one limitation on state power; Pope v. Williams 373 

Recent Southern constitutions; Williams v. Mississippi 374 

Giles V. Harris; primary purpose of the bill 375 

Industrial education; solution of race problem 376 

CHAPTER XII 

OUR COLONIAL SYSTEM AND THE MONROE DOCTRINE 

Relation of a Greek colony to parent state; relation of a Roman colony to parent 

state 377 

Modern conception of the state as nation; colonies of states of the new type; a 

colonial system of complete monopoly 378 

Adam Smith and Navigation Acts of 1651 ; Capt. Mahan's view; Spain as a colonizer 379 



J 



CONTENTS xxiii 

Siete Partidas; oppression of colonists; England as a colonizer; great title-deed of 

April 10, 1606 380 

Its terms as to citizenship; effect of conquest; Calvin's case; colonists denied repre- 
sentation in home assembly 381 

Cause of War of the Revolution; our denial of representation to colonists; scheme 

embodied in Ordinance of 1787; Jefferson head of committee 382 

No self-government at outset; distinctions between state and territory; agreement 

between Jefferson and Grenville 383 

Original scheme standard for imitation ; a fanciful outcry ; purchase of Louisiana, 1803 ; 

Territory of Orleans 384 

Territorial ports; Florida purchase, 1820; tenure of territorial judges 385 

Treaty of Guadalupe-Hidalgo, 1848; Webster and Clay declare Constitution belongs 

to states alone; Taney in Fleming v. Page 386 

Tampico a foreign port; summary of constitutional law; Chief Justice Waite's view 387 
Insular Tariff cases; De Lima w. Bid well; Downes ». Bidwell; limitations on power 

of Congress to act at all 388 

Spain's colonial monopoly; Britain's commercial conquest imperiled 389 

Real origin of Monroe Doctrine; Castlereagh superseded by Canning; his correspond- 
ence with Rush, 1823; submitted by Monroe to Jefferson; an American system 

defined 390 

Control of Gulf of Mexico and acquisition of Cuba; approval of Madison and Calhoun 391 
European system not to be extended to this hemisphere; no interference with existing 

colonies 392 

Unsettled boundaries in the Northwest ;• ukase of September, 1821; J, Q. Adams's 

declaration of July 17, 1823; President Polk's message of December 25, 1845 . . 393 
Clayton-Bulwer Treaty, 1850; France's intervention in Mexico; definition of Monroe 

Doctrine completed by President Cleveland 394 

Balance of power in Old World and New 395 

Diplomatic relations with the Orient; our hegemony in Central and South America; 

population and trade of the Orient 396 

A nation must grow or die; Germany and Japan; expansion of Great Britain . . 397 

Expansion of the United States; the shores of the Pacific in 1852 398 

Mr. Seward's prophetic speech, July 29, 1852; the path to the East; reunion of two 

civilizations 399 

Influence on Asia; United States already involved in Oriental problems .... 400 
Influence of public opinion in America and England 401 

CHAPTER XIII 

INTERSTATE COMMERCE, TRUSTS, AND MONOPOLIES 

Transition from individualism to collectivism; flight of the founders from state power 402 
Intrusion of state power in France; the orgy of individualism; the state a monster 

to be fettered with paper constitutions 403 

Creed of Jefferson's party; individualism substructure of national character; words 

of Emerson, 1844 404 

State power now hailed as a deliverer; dependence of the individual on the state . 405 

Illustrations 406 

Field of corporate action narrowed; organized labor; the age of collectivism . . . 407 
Lecky's misapprehension; growing-power of American Constitution; causes of trans- 
ition from individualism to collectivism 408 

A world-movement embracing Europe and America; Mr. Bryce's view in 1888 . . 409 



xxiv CONTENTS 

Triumphs of physical science; unlimited competition too strong for the weak; demo- 
cracies of America eager for state interference; Americans charged with having no 
theory of the state 410 

A swelling volume of legislation; subjection of corporate power to state control . .411 

Dartmouth College case, 1819; a charter a contract; an important modification . 412 

Police power excepted ; " property rights not governmental " ; Holden v. Hardy; three 
overworked parts of the Constitution 413 

Section i, Fourteenth Amendment; contract clause; commerce clause; Marshall's 
dream in Cohens v. Virginia 414 

Evolution of the commerce clause; Pinckney draft; action of Convention, August 16; 
additional words, September 4 415 

Gibbons v. Ogden, 1824; monopoly backed by state power yields to federal power 416 

Brown v. Maryland, 1827; License cases, 1847; opinion of Chief Justice Taney • . 417 

Passenger cases, 1849; exclusive control by Congress; pilots and pilotage . . . . 418 

Control of telegraph companies; final extension of admiralty jurisdiction; interstate 
Commerce Commission, February 4, 1887 419 

Water transportation eclipsed by steam; right of Congress to grant charters to rail- 
roads 420 

Jurisdiction of Interstate Commerce Commission; prior regulation by common law; 
objects of Act of February 4, 1887, declared 421 

Judicial review of rates fixed by legislature or commission; right of Commission to 
prescribe rates 422 

Commission has judicial but not legislative power; freedom of interstate commerce 
from state control 423 

Intrastate commerce defined; state has no power to destroy; extent of its police 
power 424 

Subsequent modifications; police power of state and commerce power of Congress 425 

Separate accommodations on account of race; permissible state taxation and regula- 
tion; state inspection laws 426 

Pure-food acts; liquor traffic; Justice Field runs the line 427 

Exemption of original packages; amendment of June 18, 1910 428 

Three new subject-matters in Act of June 18, 1910; a summary of statutes; pipe- 
lines, telegraph, telephone, and cable companies common carriers 429 

Jurisdiction of Commerce Court; investigation of railroad stocks and bonds; railroad 
capitalization 430 

Federal control of all agencies of interstate commerce; corporations to engage in 
interstate and international trade 431 

Federal control of corporations; excise tax on business; federal Anti-Trust Act of July 
2, 1890; prior anti-trust state statutes 432 

Zeno's edict against monopolies, A. D. 483; early English law as to contracts in re- 
straint of trade 433 

Monopolies in time of Edward VI; monopolies of Elizabeth; anti-monopoly statute 
of 21 James I, c. 32; became basic in this country 434 

Its principles modified in England; American courts fall back on earlier English 
doctrine; how Anti-Trust Act was understood by its authors 435 

Literal construction of 1897; U. S. v. E. C. Knight Co., 1895 436 

Attorney-General's reports of 1895, 1896; Re Debs, 1895; United States v. Trans- 
Missouri Freight Association, 1897 437 

Single ownership in "holding corporations"; surrender of McKinley Administration 438 

Roosevelt and Knox; Northern Securities Co. decision, 1904; Justice Brewer's im- 
portant qualification 439 

Justice White's dissent; Justice Holmes's dissent 440 



CONTENTS XXV 

Combinations that do good distinguished from those that do evil; danger of literal 

construction; amendment of Anti-Trust Act proposed 441 

Case of American Tobacco Co., 1908; Act termed revolutionary 442 

Review by Morawetz; a popular error assailed; cases divided into four classes; Debs 

case 443 

Hatters' case; the Traffic cases; an important distinction 444 

Holding companies; pooling contracts; necessity for uniformity of rates .... 445 

Contracts for diminishing competition; Addyston Pipe Co. case 446 

Contracts not unlawful at common law; when restricting contracts necessary; mean- 
ing of the words " to monopolize " 447 

The outcome of collectivism; growth of state power necessarily curtails individual 

rights; Justice Harlan's forecast 44^ 

How the finer problems of law must be solved; teachings of Roman and English law 449 
Literal or strained constructions to be avoided; line dividing legitimate competitors 
from monopolists; use of unlawful means; "judicial inclusion and exclusion"; 

meaning of the phrase " to monopolize "; Montague w. Lowry 450 

How much of the commerce in an article must be monopolized? the question of 

degree 451 

Again the rule of "inclusion and exclusion"; summary 452 

CHAPTER XIV 

THE OUTCOME OF OUR GROWTH 

Birthtime of the nation; rapidity of its development; area and population of original 

states 453 

Subsequent acquisitions; existing conditions 454 

Summary 456 

Constitutional limitations an American invention; powers of colonial assemblies 

limited by charters 457 

A confederation of the old type; failure of first American experiment; attributes of 

the new creation . 458 

Federal governments revolutionized; federation of British Empire; federal unions 

of Latin America; Constitution of Mexico 459 

A glaring solecism in Constitution of 1787 460 

A government without citizens; vital question in Dred Scott case; new citizenship 

created by Fourteenth Amendment 461 

Transition from individualism to collectivism; dread of state power nurtured by 

French Revolution; its effect upon Jefferson; "narrowing circle of individual 

rights" 462 

The industrial revolution; transition from political to economic problems .... 463 
Struggle of the masses against monopoly; "the colossus of business"; old dread of 

governmental power discarded 464 

Words of Mr. Goschen; abnormal demands upon Government; reestablishment of 

rights of individual 465 

Demand for creative statesmanship; unification of American law 466 

Code Napoleon completed in four years; new German code of 1900; influence of 

commerce in unifying law 4^7 

Our effort to establish uniform commercial system; a merchant the father of the 

Constitution 468 

"Conflict of laws"; forty-seven sources of statute law; inconveniences increase with 

rapid intercommunication 4^9 



XXVI CONTENTS 

Four great agencies at work; American Bar Association and its yoke-fellow; results 

already attained; National Civic Federation 470 

"The House of Governors"; need for a typical code of state law 47 1 

How it should be constructed; how it may be adopted; need of a Federal Code Com- 
mission 472 

Need of a simpler system of legal procedure; national life should be strengthened 

through unification of law 473 

APPENDIX 

SELECT DOCUMENTS ILLUSTRATIVE OF AMERICAN CONSTITUTIONAL 

HISTORY 

I. Articles of Confederation of the United Colonies of New England, 1643 . 477 

n. Penn's plan of Union, 1697 483 

ni. Coxe and Franklin's plan, 1754 484 

IV. Declaration of Rights and Liberties made by Stamp Act Congress, 1765 . 495 

V. Parliament's Declaratory Act of March 18, 1766 . . 497 

VL Declaration of Rights and Liberties made by First Continental Congress, 

1774 498 

Vn. The Mecklenburg Declaration of Independence of May 31, 1775 . . . 502 

VIII. Virginia's Bill of Rights adopted June 12, 1776 510 

IX. The Declaration of Independence of July 4, 1776 515 

X. Articles of Confederation, 1777 517 

XI. The epoch-making document of February 16, 1783, in which is embodied 

the first draft of the existing Constitution of the United States .... 526 
XII. The Virginia plan and Madison's sketch of a Constitution embodied in 

his three letters of March and April, 1787 550 

XIII. The Charles Pinckney Plan 562 

XIV. The Alexander Hamilton Plan 568 

XV. The New Jersey Plan 580 

XVI. The twenty-three resolutions referred to the Committee of Detail, July 26 583 

XVII. Draft of Constitution reported by Committee of Detail on August 6 . . 586 

XVIII. The Constitution as Reported by the Committee on Style on September 12 594 
XIX. Pelatiah Webster's defense of the new Constitution, October 12. The 

first commentary upon it 603 

XX. The Constitution and its amendments, with notes and annotations to date 610 



TABLE OF CASES 



IN WHICH THE CONSTITUTION HAS BEEN 
CONSTRUED 

In this table the figures in heavy type indicate the pages on which the respective 
cases are stated or discussed at greater or less length. 



Ableman v. Booth, 2i How., 620, 631, 634, 

635, 642. 
Adair v. United States, 208 U. S., 407, 617, 

640. 
Adams v. New York, 192 U. S., 638, 640. 
Adams Ex. Co. v. Ohio, 165 U. S., 616, 646. 
Addyston Pipe Co. v. U. S., 175 U. S., 445, 

617. 
Alabama & V. R. R. v. Miss. R. R. Com., 

203 U. S., 647. 
Alexander's Cotton, 2 Wall., 618. 
Alicia, the, 7 Wall., 630. 
Allen V. B. & O. R. R., 114 U. S., 623. 
V. Georgia, 166 U. S., 646. 
V. Pullman Co., 191 U. S., 617. 
Allgeyer v. Louisiana, 165 U. S., 624, 646. 
Allis V. U. S., 155 U. S., 242. 
Allison V. U. S., 160 U. S., 242. 
Almy V. California, 24 How., 625. 
American Exp. Co. v. Iowa, 196 U. S., 617. 
American Ins. Co. v. Canter, i Pet., 265, 266, 
385, 618, 619, 627, 629, 634. 
V. Bales of Cotton, 385. 
American Pub. Co. v. Fisher, 166 U. S., 634, 

641. 
American Smelting & R. Co. v. Colo., 204 

U. S., 624. 
American Steel & W. Co. v. Speed, 192 U. S., 

428, 617, 625. 
American Sug. Ref. Co. v. La., 179 U. S., 647. 
American Tobacco Co. v. Werckmeiser, 207 

U. S., 638. 
Ames V. Kansas, 11 1 U. S., 628, 631. 
Amy V. Shelby County, 114 U. S., 623. 
Andersen v. Treat, 172 U. S., 239, 240. 
Anderson v. Dunn, 6 Wheat., 612, 642. 
Andrews v. Andrews, 188 U. S., 630, 632, 642. 

V. Swartz, 156 U. S., 639, 646. 
Anglo-Amer. Prov. Co. v. Davis Prov. Co., 

191 U. S., 632, 633. 
Antelope, the, 10 Med., 253n. 
Appleyard ». Mass., 203 U. S., 633. 
Arbuckle v. Blackburn, 191 U. S., 630. 



Arkansas So. R. R. i;. La., 218 U. S., 624. 
Arkansas Valley L. & C. Co. v. Mann, 130 

U. S., 641. 
Armour Packing Co. v. U. S., 209 U. S., 621, 

632, 641. 
Armstrong v. Athens County, 16 Pet., 622. 

V. U. S., 13 Wall., 627. 
Armstrong's Foundry, 6 Wall., 627. 
Arrowsmith v. Harmoning, 118 U. S., 645. 
Asbell V. Kansas, 209 U. S., 617. 
Asher v. Texas, 128 U. S., 616. 
Ashley v. Ryan, 153 U. S., 616. 
Aspinwall v. County Commissioners, 22 

How., 622. 
Atchison, T. & S. F. R. R. v. Matthews, 174 

U. S., 647. 

Atlantic & Ga. R. R. v. Georgia, 98 U. S., 622. 

Atlantic Coast Line v. Florida, 203 U. S., 647. 

V. No. Car. Corp. Com., 206 U. S., 647. 

V. Wharton, 207 U. S., 617. 

Att'y-Gen'l v. Western U. Tel. Co., 141 

U. S., 616. 
Ayers, in re, 123 U. S., 247, 642. 

Bachtel v. Wilson, 204 U. S., 647. 
Bacon v. Walker, 204 U. S., 647. 
Bain, ex parte, 121 U. S., 639. 
Baker v. Kilgore, 145 U. S., 623. 
Baldwin v. Franks, 120 U. S., 630, 645. 
Ballard v. Hunter, 204 U. S., 647. 
Baltimore & O. R. R. v. Maryland, 21 Wall., 

615. 
Baltimore & Susq. R. R. v. Nesbitt, 10 How., 

622. 
Baltzer v. No. Carolina, 161 U. S., 624. 
Bank v. Supervisors, 7 Wall., 615. 
Bank of Alabama v. Dalton, 9 How., 632. 
Bank of Augusta v. Earle, 13 Pet., 629, 632, 

633- 
Bank of Columbia v. Okely, 4 Wheat., 641. 
Bank of Commerce v. New York, 2 Black, 
614, 615. 
V. Tennessee, 161 U. S., 624. 



XXVI 11 



TABLE OF CASES 



Bank of Hamilton v. Dudley, 2 Pet., 334. 
Bank of Redemption v. Boston, 125 U. S., 645. 
Bank of U. S. v. Deveaux, 5 Cr., 629, 633. 

V. Halstead, 10 Wheat., 619, 631. 

V. Planters' Bk., 9 Wheat., 642. 
Bank Tax Cases, 2 Wall., 615. 
Bankers' Cas. Co. v. Minn., St. P. & S. S. M. 

R. R., 192 U. S., 630. 
Banks v. New York, 7 Wall., 615. 
Barbier ?;. Connolly, 113 U. S., 645. 
Baring v. Dabney, 19 Wall., 622. 
Barnitz v. Beverly, 163 U. S., 624. 
Barrington v. Mo., 205 U. S., 640, 647. 
Barron v. Baltimore, 7 Pet., 229n., 237, 610. 

V. Burnside, 121 U. S., 616, 630. 
Bartemeyer v. Iowa, 18 Wall., 427, 615, 649. 
Barton v. Barbour, 104 U. S., 631. 
Bassing v. Cady, 208 U. S., 633, 640. 
Bates V. Brown, 5 Wall., 265n. 
Battle V. U. S., 209 U. S., 619. 
Bauman v. Ross, 167 U. S., 639. 
Bayard v. Singleton, i No. Car., 104. 
Baylis v. Trav. Ins. Co., 113 U. S., 241. 
Beall V. New Mexico, 16 Wall., 634. 
Beavers v. Haubert, 198 U. S., 640. 

V. Henkel, 194 U. S., 640. 
Bedford v. U. S., 192 U. S., 639. 
Beers v. Arkansas, 20 How., 622. 

V. Glynn, 211 U. S., 648. 

V. Haughton, 9 Pet., 618, 621. 
Bell's Gap R. R. v. Penn., 134 U. S., 645. 
Benner v. Porter, 9 How., 628. 
Benson v. U. S., 146 U. S., 619, 634. 
Berea College v. Kentucky, 211 U. S., 648. 
Bergmann v. Backer, 157 U. S., 640, 655. 
Bernheimer v. Converse, 206 U. S., 624, 647. 
Bier v. McGehee, 148 U. S., 623. 
Bigelow V, Forrest, 9 Wall., 632. 
Binghamton Bridge, the, 3 Wall., 622. 
Binns v. U. S., 194 U. S., 614, 634. 
Bitterman v. L. & N. R. R., 207 U. S., 648. 
Blackstone v. Miller, 188 U. S., 632, 633. 
Blair v. Chicago, 201 U. S., 624. 
Blake v. McClung, 172 U. S., 633, 647. 

V. McClung, 176 U. S., 633. 
Blount V. Walker, 134 U. S., 632. 
Blyew V. U. S., 13 Wall., 630. 
Board of Educ. v. Illinois, 203 U. S., 647. 
Board of Public Works v. Columbia Coll., 

17 Wall., 632. 
Bobbs-Merrill Co. v. Straus, 210 U. S., 618. 
Bollman, ex parte, 4 Cr., 620, 629, 632. 
BoUn V. Nebraska, 176 U. S., 634, 647. 
Bonaparte v. Tax Court, 104 U. S., 632. 
Bonner v. Gonnan, 213 U. S., 648. 
Bors V. Preston, iii U. S., 631. 
Boston Beer Co. v. Mass., 97 U. S., 615. 
Bowman v. Chicago & N. W. R. R., 125 
U. S., 427, 428, 616, 642. 

V. Middleton, i Bay (S. C), 104, 105. 



Boyd V. U. S., 116 U. S., 234, 639. 
Boyle V. Zacharie, 6 Pet., 618. 
Bradfield v. Roberts, 175 U. S., 638. 
Bradley v. Illinois, 4 Wall., 614. 
Bradwell v. Illinois, 16 Wall., 633, 649. 
Brass v. Stoeser, 153 U. S., 616, 646. 
Breedlove v. Nicolet, 7 Pet., 629. 
Brennan i;. Titusville, 153 U. S., 616. 
Bridge Prop'rs v. Hoboken Land I. Co., I 

Wall., 622. 
Brimmer v. Rebman, 138 U. S., 616. 
Briscoe v. Bank of Ky., 1 1 Pet., 618, 621, 642. 
Bronson v. Kinzie, i How., 622. 
Brooks V. Missouri, 124 U. S., 630. 
Brown v. Fletcher, 210 U. S., 633. 
V. Grant, 116 U. S., 639. 
V. Houston, 114 U. S., 615, 622, 632, 

633. 
V. Keene, 8 Pet., 629. 
V. Maryland, 12 Wheat., 417, 610, 615, 

625. 
V. New Jersey, 175 U. S., 229n., 647. 
V. Smart, 145 U. S., 623, 646. 
V. U. S., 8 Cr., 618. 
V. Walker, 161 U. S., 639. 
Brown-Fomian Co. v. Kentucky, 217 U. S., 

648. 
Buck V. Beach, 206 U. S., 647. 
Buckner v. Finley, 2 Pet., 635, 642. 
Budd V. New York, 143 U. S., 616, 646. 
Burke i;. Wells, 208 U. S., 617. 
Burrow-Giles Lithog. Co. v. Sarony, III 

U. S., 618. 
Butler V. Goreley, 146 U. S., 623, 646. 

V. Penn., 10 How., 622. 
Buttfield V. Stranahan, 192 U. S., 617, 620, 

640. 
Butz V. Muscatine, 8 Wall., 622. 
Byrne v. Missouri, 8 Pet., 621. 

Cahen v. Brewster, 203 U. S., 647. 
Calder v. Bull, 3 Dall., 621, 635. 

V. Michigan, 218 U. S., 624. 
Caldwell v. Carrington, 9 Pet., 632. 
V. Texas, 137 U. S., 639, 646. 
California v. Cent. Pac. R. R., 127 U. S., 

419, 420, 614, 616. 
Callan :;. Wilson, 127 U. S., 240, 631, 634. 
Calvin's case, 2 State Trials, 358, 381. 
Camfield v. U. S., 167 U. S., 634. 
Campbell v. Holt, 115 U. S., 645. 

V. Wade, 132 U. S., 623. 
Cannon v. New Orleans, 20 Wall., 625. 
Capital City Dairy Co. v. Ohio, 183 U. S., 

617, 639. 
Carfer v. Caldwell, 200 U. S., 620, 631. 
Cargill Co. v. Minnesota, 180 U. S., 617, 631, 

632, 
Carpenter v. Penn., 17 How., 620, 622. 
. V. Strange, 141 U. S., 632. 



TABLE OF CASES 



XXIX 



Carroll County v. Smith, iii U. S., 633. 

Carter v. Texas, 177 U. S., 647. 

Cary v. Curtis, 3 How., 629. 

Castle V. Bullard, 23 How., 241. 

Cates V. Allen, 149 U. S., 641. 

Central Georgia R. R. v. Murphey, 196 U. S., 

617, 642, 648. 
Central Land Co. v. Laidley, 159 U. S., 623, 

646. 
Central L. & T. Co. v. Campbell Com. Co., 

173 U. S., 647. 
Central R. R. of N. J. v. Jersey City, 209 

U. S., 648. 
Chadwick v. Kelley, 187 U. S., 633. 
Chae Chan Ping v. U. S., 130 U. S., 610, 618, 

620, 623, 630. 
Chambers v. B. & O. R. R., 207 U. S., 633. 
Chandler v. Dix, 194 U. S., 642. 
Chanler v. Kelsey, 205 U. S., 647. 
Chapman, in re, 166 U. S., 612, 638. 
Chappedelaine v. Dechenaux, 4 Cr., 629. 
Chappell V. U. S., 160 U. S., 619, 630, 641. 
Charles Riv. Br. v. Warren Br., 11 Pet., 336, 

337, 412, 413, 622. 
Charlotte, C. & A. R. R. v. Gibbes, 142 U. S., 

646. 
Chemung Bank v. Lowery, 93 U. S., 633. 
Cherokee Nation v. Georgia, 5 Pet., 334, 627, 
629, 631, 642. 
V. So. Kansas R. R., 135 U. S., 616, 
623, 635, 639. 
Chesapeake & O. R. R. v. Kentucky, 179 

U. S., 617. 
Chicago & A. R. R. v. Wiggins Ferry Co., 

119 U. S., 632. 
Chicago & G. T. R. R. v. Wellman, 143 U. S., 

616. 
Chicago & N. W. R. R. v. Fuller, 17 Wall., 
615. 
V. Whitton, 13 Wall., 630. 
Chicago, B. & Q. R. R. v. Babcock, 204 U. S., 
647. 
V. Chicago, 166 U. S.1 641, 646. 
V. Illinois, 200 U. S., 640. 
V. Iowa, 94 U. S., 425. 
V. Nebraska, 170 U. S., 624. 
Chicago, M. & S. P. R. R. v. Minnesota, 134 
U. S., 425, 639, 645. 
V. Solan, 169 U. S., 616. 
Chicago, R. I. & P. R. R. v. Sturm, 174 U. S., 

632. 
Chicago Life Ins. Co. v. Needles, 113 U. S., 

623. 
Chinese Exclusion Case. See Chae Chan 

Ping V. U. S. 
Chirac v. Chirac, 2 Wheat., 635. 
Chisholm v. Georgia, 2 Dall., 246, 293, 610, 

626, 628, 629, 631, 641, 642. 
Christ Church v. Phila. County, 24 How., 

622. 



Christian v. Atlantic & N. C. R. R., 133 

U. S., 630. 
Christmas v. Russell, 5 Wall., 632. 
Church V. Kelsey, 121 U. S., 623, 642, 645. 
Church of Jesus Christ of Latter-Day Saints 

V. U. S., 136 U. S., 230, 294n., 618, 623, 

634, 636. 
Chy Lung v. Freeman, 92 U. S., 615. 
Cincinnati, I. & W. R. R. v. Connersville, 

218 U. S., 648. 
Cincinnati, N. O. & T. P. R. R. v. Kentucky, 

115 U. S., 645. 
Cincinnati, P. B. S. & P. Packet Co. v. 

Catlettsburg, 105 U, S., 621, 625. 
Circassian, the, 339. 
Citizens' Nat. Bk. v. Kentucky, 217 U. S., 

624. 
Citizens' Sav. Bank v. Owensboro, 173 U. S., 

624. 
City & Lake R. R. v. New Orleans, 157 

U. S., 624. 
City of Baltimore, the, 7 Pet., 639. 
Civil Rights Case. See U. S. v. Stanley. 
Claflin V. Houseman, 93 U. S., 610, 642. 
Clark V. Kansas City, 176 U. S., 647. 
Clarke, ex parte, 100 U. S., 612. 
Clarke v. Clarke, 178 U. S., 632. 
Cleveland v. Cleveland City Ry., 194 U. S., 
630. 
V. Cleveland Elec. Ry., 201 U. S., 624. 
Cleveland, C, etc., R. R. v. Porter, 210 

U. S., 648. 
Cleveland Elec. Ry. v. Cleveland, 204 U. S., 

624, 647. 
Clinton v. Englebrecht, 13 Wall., 265n., 634. 
Clinton Bridge, the, 10 Wall., 615. 
Clough V. Curtis, 134 U. S., 631. 
Clune V. U. S., 159 U. S., 620. 
Clyatt V. U. S., 197 U. S., 644. 
Coal Co. V. Blatchford, 11 Wall., 630. 
Coffey V. Harlan County, 204 U. S., 647. 
Cohens v. Virginia, 6 Wheat., 153, 154, 211, 

247, 329, 334, 414, 619, 628, 629, 631, 642. 
Cole V. Cunningham, 133 U. S., 632, 633. 

V. La Grange, 113 U. S., 639. 
Collector w. Day, 11 Wall., 614, 642. 
Collins V. New Hampshire, 171 U. S., 616. 
Colson V. Lewis, 2 Wheat., 629. 
Columbus So. R. R. v. Wright, 151 U. S., 

646. 
Commerical & R. R. Bank v. Slocomb, 14 

Pet., 629. 
Commonwealth v. Caton, 4 Call (Va.), 44, 

104. 
Conner v. Elliot, 18 How., 633. 
Consolidated Rendering Co. v. Vermont, 

207 U. S., 638, 640, 647. 
Converse, in re, 137 U. S., 646. 
Conway v. Taylor, i Black, 615. 
Cook V. Marshall County, 196 U. S., 617. , 



XXX 



TABLE OF CASES 



Cook V. Moffat, 5 How., 618, 622. 
V, Penn., 97 U. S., 615, 625. 
V. U. S., 138 U. S., 620, 623, 631, 640. 
Cook County v. Calumet & C. Canal Co., 

138 U. S., 623, 635. 
Cooke V. Avery, 147 U. S., 630. 
Cooley V. Wardens of Phila., 12 How., 418, 

419, 615, 621, 625. 
Cooper Mfg. Co. v. Ferguson, 113 U. S., 

615. 
Cope V. Cope, 137 U. S., 634. 
Cornell v. Coyne, 192 U. S., 621, 625. 
Corson v. Maryland, 120 U. S., 616. 
Cosmopolitan Club v. Virginia, 208 U. S., 

624, 648. 

Coughran v. Bigelow, 164 U. S., 641. 
Counselman v. Hitchcock, 142 U. S., 639. 
County Court v. U. S., 140 U. S., 623. 
Coupon Cases, 135 U. S., 642. 
Covington v. Kentucky, 173 U. S., 624. 
Covington Bridge Co. v. Kentucky, 154 

U. S., 424, 616. 
Covington & L. Turnpike Co. v. Sandford, 

164 U. S., 358, 624, 646. 
Cox V. Texas, 202 U. S., 647. 
Coxe V. M'Clenachan, 3 Dall., 613. 
Coy, in re, 127 U. S., 612, 620. 
Craig V. Leitensdorfer, 127 U. S., 630, 631. 

V. Missouri, 4 Pet., 621. 
Crain v. V. S., 162 U. S., 236. 
Crandall v. Nevada, 6 Wall., 352, 615, 619, 

625, 633, 649. 

Crane, ex parte, 5 Pet., 631. 
Crawford v. Bank, 7 How., 622. 
Crenshaw v. U. S., 134 U. S., 623. 
Cross V. Harrison, 16 How., 634. 

V. No. Carolina, 132 U. S., 639, 645. 
Crossman v. Lurman, 192 U. S., 427, 617. 
Crowley v. Christensen, 137 U. S., 646. 
Crutcher v. Kentucky, 141 U. S., 616. 
Cummingi'. Richmond County B'd of Educ, 

175 U. S., 647. 
Cummings v. Chicago, 188 U. S., 617, 630. 

V. Missouri, 4 Wall., 620, 622. 
Curran v. Arkansas, 15 How,, 622, 642. 
Curtis V. Whitney, 13 Wall., 622. 

Dale Mfg. Co. v. Hyatt, 125 U. S., 630. 
Danbury Hatters' Case. See Loewe v. 

Lawlor. 
Daniel Ball, the, 10 Wall., 424n., 615. 
Darby v. Mayer, 10 Wheat., 632. 
Darcy v. Allain, 13 Rep., 434. 
D'Arey v. Ketchum, 11 How., 632. 
Darnell v, Memphis, 208 U. S., 617, 648. 
Darrington v. Bank, 13 How., 622. 
Dartmouth College v. Woodward, 4 Wheat., 

93, 94, 336, 354, 412, 414, 621. 
Davidson v. New Orleans, 96 U. S., 77, 78, 
, 222, 237, 365, 367, 368, 450. 



Davis V. Beason, 133 U. S., 634, 638, 645. 
V. Gray, 16 Wall., 630. 
V. Mass., 167 U. S., 646. 
V. Packard, 6 Pet., 629. 
V. Packard, 7 Pet., 629. 
V. Packard, 8 Pet., 629. 
V. State, 68 Ala., I05n. 
V. Texas, 139 U. S., 229n. 
Dawson v. Columbia Trust Co., 197 U. S., 

631. 
Day V. Micou, 18 Wall., 632. 
Debs, in re, 158 U. S., 437 and n., 443, 610, 

616, 618, 631. 
Delamater v. So. Dakota, 205 U. S., 620. 
Delaware, L. & W. R. R. v. Penn., 198 U. S., 

625. 
Delaware R. R. Tax, 18 Wall., 615. 
De Lima v. Bidwell, 182 U. S., 388, 610,614, 

621, 634. 
Delmar Jockey Club v. Missouri, 210 U. S., 

648. 
Denny v. Bennett, 128 U. S., 623. 
Dent V. West Virginia, 129 U. S., 645. 
Deposit Bank v. Frankfort, 191 U. S., 630. 
De Treville v. Smalls, 98 U. S., 611. 
Detroit, Ft. W. & B. I. R. R. v. Osbom, 189 

U. S., 630. 
Devine v. Los Angeles, 202 U. S., 624, 649. 
Dewey v. Des Moines, 173 U. S., 647. 
Diamond Glue Co. v. U. S. Glue Co., 187 

U. S., 617, 624, 633. 
Diamond Rings (14) v. U. S., 183 U. S., 614, 

621, 627, 634. 
Dick V. U. S., 208 U. S., 617. 
Disconto Gesellschaft v. Umbreit, 208 U. S., 

648. 
District of Columbia v. Brooke, 214 U. S., 

648. 
Dobbins v. Erie County, 16 Pet., 614. 
Dodge V. Woolsey, 18 How., 622, 635. 
Dooley v. U. S., 182 U. S,, 614, 630, 634. 

V. U. S., 183 U. S., 621, 625. 
Dorr, ex parte, 3 How., 620. 
Dorr V. U. S., 195 U. S., 627, 632, 634, 640. 
Douglas V. Kentucky, 168 U. S., 624. 
Dow V. Beidelman, 125 U. S., 645. 
Downes v. Bidwell, 182 U. S., 266, 267, 274n. 

275n., 385n., 388, 389, 634. 
Downham v. Alexandria Council, 10 Wall., 

615. 633. 
Doyle V. Ins. Co., 94 U. S., 630. 
Drehman v. Stifle, 8 Wall., 620, 622. 
Dreyer v. Illinois, 187 U. S., 639. 
Dubuque & S. C. R. R. v. Richmond, 19 

Wall., 615. 
Duncan, in re, 139 U. S., 620, 635, 646. 
Duncan v. Missouri, 152 U. S., 606, 623. 
Dunphy v. Kleinschmidt, 11 Wall., 619. 
Durousseau v. U. S., 6 Cr., 629, 631. 
Dynes v. Hoover, 20 How., 619, 639. 



TABLE OF CASES 



XXXI 



Eagle Ins. Co. v. Ohio, 153 U. S., 623. 
East Saginaw Salt Co. v. East Saginaw, 13 

Wall., 622. 
Eastern B'ld'g Assoc, v. Welling, 181 U. S., 

630. 
Edwards v. Kearzey, 96 U. S., 622. 
Edye v. Robertson, 112 U. S., 615. 
Effinger v. Kenney, 115 U. S., 623. 
Eilenbecker v. Plymouth County, 134 U. S., 

631, 638, 639, 640, 641, 645. 
Elam, ex parte, 152 Cal., 406. 
Eldredge v. Trezevant, 160 U. S., 646. 
Elk V. Wilkins, 112 U. S., 357, 645. 
Ellis V. U. S., 206 U. S., 610, 640. 
Elmore v. Grymes, i Pet., 241. 
Emert v. Missouri, 156 U. S., 616. 
Employers' Liability Cases, 207 U. S., 617. 
Erie R. R. v. Penn. See New York, L. E. & 

W. R. R. V. Penn. 
Essex Public Road B'd v. Shinkle, 140 U. S., 

623. 
Eustis V. BoUes, 150 U. S., 623, 627. 
Exchange Bank v. Wiley, 195 U, S., 633. 

Fairfax v. Hunter, i Wheat., 245. 
Fairhaven & W. R. R. v. New Haven, 203 

U. S., 647. 
Fallbrook Irr. Dist v. Bradley, 164 U. S., 

630, 646. 
Fargo V. Michigan, 121 U. S., 4i8n., 616. 
Farmers' & Mechanics' Bank v. Smith, 6 

Wheat., 618, 621. 
Farrell v. O'Brien, 199 U. S., 631. 
Fauntleroy v. Lun, 210 U. S., 633. 
Felix V. Scharnweber, 125 U. S., 630. 
Felsenheld v. U. S., 186 U. S., 614. 
Felton V. University, 208 U. S., 624. 
Fenn v. Holme, 21 How., 629. 
Ficklen v. Shelby County, 145 U. S., 616. 
Fidelity & Deposit Co. v. U. S., 187 U. S., 

640. 
Fidelity Mut. Life Ins. Co. v. Clark, 203 

U. S., 641. 
Field V. Barber Asphalt Co., 194 U. S., 617. 
V. Clark, 143 U. S., 610, 613, 614, 625. 
Fielden v. Illinois, 143 U. S., 646. 
Finney v. Guy, 189 U. S., 632. 
Finsley v. Treat, 205 U. S., 632, 641. 
First Nat. Bk. v. Kentucky, 9 Wall., 615, 620. 
V. Yankton County, loi U. S., 387, 
388. 
Fisk V. Jefferson, 116 U. S., 623. 
Fitts V. McGhee, 172 U. S., 642. 
Fleming v. Page, 9 How., 386, 387. 
Fletcher v. Peck, 6 Cr., 331, 332, 621, 720. 

V. R. I., 5 How., 417, 614, 615. 
Fong Yue Ting v. U. S., 149 U. S., 267n., 

610, 620, 631, 635, 638, 639, 641. 
Foppiano v. Speed, 199 U. S., 617. 
Forsyth v. Hammond, 166 U. S., 642. 



Fort Leavenworth R. R. v. Lowe, 114 U, S., 

610, 619. 
Foster v. Davenport, 22 How., 615, 635. 

V. Neilson, 2 Pet., 627, 635. 

V. Wardens of New Orleans, 94 U. S., 
, 615. 
Fox V. Ohio, 5 How., 229n., 618, 639, 640. 
Francis Wright, the, 105 U. S., 631. 
Franklin v. So. Carolina, 218 U. S., 648. 
Franklin Branch Bk. v. Ohio, i Black, 622. 
Frederick, in re, 149 U. S., 620, 646. 
Freeborn v. Smith, 2 Wall., 631. 
Freeland v. Williams, 131 U. S., 623, 639, 645. 
French v. Barber Asphalt Pav. Co., 181 U. S., 

639. 
Fretz V. Bull, 12 How., 629. 
Fritts V. Palmer, 132 U. S., 616. 
Furman v. Nichol, 8 Wall., 622. j 

Gaines v. Fuentes, 92 U. S., 630. 
Galveston, H. & S. R. R. v. Texas, 170 U. S., 

624, 647. 
Galveston, etc., R. R. r. Texas, 210 U. S., 

617. 
Garland, ex parte, 4 Wall., 620,'^622, 627, 636, 

638. 
Garnett, in re, 141 U. S., 616, 630. 
Garrison v. New York, 21 Wall., 622. 
Gassies v. Ballon, 6 Pet., 618, 633. 
Gatewood v. No. Carolina, 203 U. S., 647. 
Geer v. Conn., 161 U. S., 616, 
General Oil Co., v. Grain, 209 U. S., 617. 
Genesee Chief v. Fitzhugh, 12 How., 337, 

419, 615, 629. 
Geofroy v. Riggs, 133 U. S. 610, 627. 
Georgia v. Brailsford, 2 Dall., 642. 

V. Stanton, 6 Wall., 630. 
German Sav. Bk. v. Dormitzer, 192 U. S., 

633- 
Gibbons v. Dist. of Columbia, 116 U. S., 6ll. 
V. Ogden, 9 Wheat., 414,416 and n., 
419, 615, 625, 635. 
Gibson v. Chouteau, 13 Wall., 634. 

V. Mississippi, 162 U. S., 624, 646. 
Giles V. Harris, 189 U. S., 373. 
GilfiUan v. Union Canal Co., 109 U. S., 623. 
Gilman v. Phila., 3 Wall., 615. 

V. Sheboygan, 2 Black, 622, 639, 
Giozza V. Tiernan, 148 U. S., 646. 
Gladson v. Minnesota, 166 U. S., 616, 618, 

646. 
Glass V. The Betsey, 3 Dall., 629. 
Glenn v. Garth, 147 U. S., 632. 
Gloucester Ferry Co. v. Penn., 114 U. S., 615. 
Gordon v. Appeal Tax Court, 3 How., 622. 
Gould V. Gould, 78 Conn., 407. 
Governor of Georgia v. Madrazo, i Pet., 642. 
Grafton v. U. S., 206 U. S., 634, 640. 
Graham w. Folsom, 200 U. S., 624, 643. 
Grant v. Raymond, 6 Pet., 618. 



XXXll 



TABLE OF CASES 



Grapeshot, the, 9 Wall., 627. 

Gray v. Conn., 159 U. S., 646. 

Great Falls Mfg. Co, v. Attorney-General, 

124 U. S., 639. 
Green, in re, 134 U. S., 611, 626, 643. 
Green v. Biddle, 8 Wheat., 621, 625. 
V. Van Buskirk, 7 Wall., 632. 
Green Bay & Miss. Canal Co. v. Patten 
Paper Co., 172 U. S., 639. 
V. Patten Paper Co., 173 U. S., 634. 
Greenwood v. Union Freight Co., 105 U. S., 

623. 
Grenada Lumber Co. v. Mississippi, 217 

U. S., 648. 
Griffith V. Conn., 218 U. S., 624, 648, 
Gulf, C. & S. F. R. R. V. Ellis, 165 U. S., 
640. 
V. Hefley, 158 U. S., 616, 635. 
Gundling v. Chicago, 177 U. S., 647. 
Gunn V. Barry, 15 Wall., 622.. 
Gunter v. Atlantic Coast Line, 200 U. S., 

624, 643. 
Gut V. Minnesota, 9 Wall., 622. 
Guthrie Nat. Bk. t>. Guthrie, 173 U. S., 242, 

641. 

Haddock v. Haddock, 201 U. S., 633. 
Hagar v. Reclamation Dist., iii U. S., 645. 
Hagood V. Southern, 117 U. S., 642. 
Hairston v. Danville & W. R. R., 208 U. S., 

648. 
Hale V. Henkel, 201 U. S., 638, 640. 
Hall V. DeCuir, 95 U. S., 424n. 

V. Wisconsin, 103 U. S., 623. 
Hallinger v. Davis, 146 U. S., 639, 640, 646. 
Halter v. Nebraska, 205 U. S., 647. 
Hamilton v. Dillin, 21 Wall., 618, 627. 
Hamilton Gas Light Co. v. Hamilton, 146 

U. S., 623. 
Hammond Packing Co. v. Arkansas, 212 

U. S., 624, 648. 
Hampton v. M'Connel, 3 Wheat., 632. 
Hancock Nat. Bk. v. Farnum, 176 U. S., 632. 
Hanford v. Davies, 163 U. S., 624, 630. 
Hanley v. Donoghue, 116 U. S., 632. 
Hannibal & St. J. R. R. v. Husen, 95 U. S., 
625. 
V. Missouri R. P. Co., 125 U. S., 630. 
Hanover Nat. Bank v. Moyses, 186 U. S., 

618, 628, 639. 
Hans V. Louisiana, 134 U. S., 623, 630. 
Harding v. Harding, 198 U. S., 633. 
Harmon v. Chicago, 147 U. S., 625. 
Harris v. Balk, 198 U. S., 632. 
Haver v. Yaker, 9 Wall., 635. 
Hawaii v. Mankichi, 190 U. S., 634, 639, 640. 
Hawker v. New York, 170 U. S., 624. 
Hawthorne v. Calef, 2 Wall., 622. 
Hayburn's Case, 2 Dall., 610, 629, 635. 
Hayes v. Missouri, 120 U. S., 645. 



Head v. Amoskeag Mfg. Co., 113 U. S.,645. 

V. University, 19 Wall., 622. 
Head Money Cases. See Edye v. Robertson. 
Heath & Milligan Co. v. Worst., 207 U. S., 

648. 
Heff, in re, 197 U. S., 617, 642. 
Henderson v. New York, 92 U. S., 615. 
Henderson Bridge Co. r. Henderson, 14I 

U. S., 616, 623, 630, 647. 
Henly v. Myers, 215 U. S., 624. 
Hennington v. Georgia, 163 U. S., 616. 
Hepburn v. Ellzey, 2 Cr., 619, 620, 629. 

V. Griswold, 8 Wall., 615, 619, 622, 

639- 
Hicks V. U. S., 150 U. S., 242. 
Hine, the, v. Trevor, 4 Wall., 629. 
Hinson v. Lott., 8 Wall., 614, 625. 
Hodges V. U. S., 203 U. S., 642, 644, 647, 650. 
Hodgson V. Bowerbank, 5 Cr., 629. 
V. Vermont, 168 U. S., 646. 
Holden v. Hardy, 169 U. S., 413, 647. 
V. Joy, 17 Wall., 627. 
V. Minnesota, 137 U. S., 620, 623, 
639, 646. 
Hollingsworth v. Virginia, 3 Dall., 246, 629, 

635, 641, 642. 
Holmes v. Jennison, 14 Pet., 615, 620, 633. 
Holyoke W. P. Co. v. Lyman, 15 Wall., 622. 
Home of the Friendless!'. Rouse, 8 Wall., 622. 
Home Ins. Co. v. Augusta, 93 U. S., 622. 
V. Morse, 20 Wall., 630. 
V. New York, 134 U. S., 615, 646. 
Home Savings Bank v. Des Moines, 205 

U. S., 615. 
Home Tel. & Tel. Co. v. Los Angeles, 211 

U. S., 648. 
Hooker v. Burr, 194 U. S., 630. 

V. Los Angeles, 188 U. S., 630. 
Hooper v. California, 155 U. S., 616. 
Hope Ins. Co. v. Boardman, 5 Cr., 629. 
Horn Silver Min. Co. v. New York, 143 

U. S., 616, 639, 646. 
Horner v. U. S., 143 U. S., 618, 620, 627, 635, 

638. 
Houston V. Moore, 5 Wheat., 619. 
Houston & T. C. R. R. v. Mayes, 201 U. S., 

617, 624. 
Howard i;. Bugbee, 24 How., 622. 
V. Fleming, 191 U. S., 630. 
V. Kentucky, 200 U. S., 640, 641. 
Hudson Water Co. v. McCarter, 209 U. S., 

624, 633, 648. 
Huling V. Kaw Valley R. & I. Co., 130 U. S., 

639. 645- 
Humphrey v. Pegues, 16 Wall., 622. 
Hunt V. Hunt, 131 U. S., 623. 
Hunter v. Pittsburg, 207 U. S., 624, 640, 647. 
Huntington v. Attrill, 146 U. S., 632. 
Hurtado v. California, no U. S., 80, 81, 235, 

336, 368, 645. 



TABLE OF CASES 



XXXI 11 



Huse V. Glover, 119 U. S., 616, 625. 

Huus V. New York & P. R. SS. Co., 182 

U. S., 4i8n. 
Hyde v. Stone, 20 How., 629. 
Hylton V. U. S., 3 Dall., 614. 

Illinois Cent. R. R. v. Adams, 180 U. S., 642. 
V. Illinois, 146 U. S., 623. 
V. Illinois, 163 U. S., 616. 
V. Kentucky, 218 U. S., 648. 
Income Tax Cases. See Pollock v. Farmers' 

L. & T. Co. 
Inglis V. Sailors' S. H., 3 Pet., 626. 
Inman SS. Co. v. Tinker, 94 U. S., 625, 642. 
Insular Tariff Cases, 266, 267, 388, 389. And 
see De Lima v. Bidwell, Dooley v. U. S., 
Downes v. Bidwell. 
International Mercantile Marine Co. v. 

Stranahan, 214 U. S., 617. 
Interstate Com. Com. v. Baird, 194 U. S., 
638, 640. 
V. Baltimore & O. R. R., 145 U. S., 

421, 422, 616. 
V. Brimson, 154 U. S., 630, 638, 639, 

646. 
V. Chicago & Alton R. R., 215 U. S., 

617. 
V. Cincinnati, N. O. & T. P. R. R., 

167 U. S., 422, 423, 425n. 
V. Illinois Cent. R. R., 215 U. S., 617, 
648. 
Interstate Ry. Co. v. Mass., 207 U. S., 648. 
Iowa Cent. R. R. v. Iowa, 160 U. S., 646. 
Irvine v. Marshall, 20 How., 629. 
Israel v. Arthur, 152 U. S., 623. 

Jack V. Kansas, 199 U. S., 638, 640, 641, 642. 
Jackson ex dem. Hart v. Lampshire, 3 Pet., 

621. 
Jackson v. Twentyman, 2 Pet., 629, 
Jacobson v. Mass., 197 U. S., 610, 631, 643. 
Jaehne v. New York, 128 U. S., 623. 
James v. Bowman, 190 U. S., 650. 
Japanese Immigrant Case. See Yamataya 

V. Fisher. 
Jaster v. Currie, 198 U. S., 633. 
Jefferson Branch Bk. v. Shelly, i Black, 622. 
John Hancock Mat. Life Ins. Co. v. Warren, 

181 U. S., 642. 
Johnson v. Chicago & Pac. Elev. Co., 119 
U. S., 621. 
V. New York Life Ins. Co., 187 U. S., 

632. 
V. Sayre, 158 U. S., 639. 
Joint Traffic Assoc. Case. See U. S. v. Joint 

Traffic Assoc. 
Jones V. Brim, 165 U. S., 646. 
V. Craig, 127 U. S., 630. 
V. League, 18 How., 629. 
V. U. S., 137 U. S., 630, 634, 640. 



Jones V. Van Zandt, 5 How., 265n., 634. 
Juilliard v. Greenman, no U. S., 614, 615, 

620, 639. 
Justices V. Murray, 9 Wall., 631, 641. 

Kaine, in re, 14 How., 631. 
Kansas v. Colorado, 185 U. S., 630, 642. 
V. Colorado, 206 U. S., 642. 
V. U. S., 204 U. S., 631. 
Karstendick, in re, 93 U. S., 620. 
Kauffman v. Wooters, 138 U. S., 646. 
Kaukauna W. P. Co. v. G. B. & Miss. Canal 

Co., 142 U. S., 639, 646. 
Kearney, ex parte, 7 Wheat., 620, 629, 631, 

640. 
Keerl v. Montana, 213 U. S., 648. 
Keith V. Clark, 97 U. S., 622. 
Kemmler, in re, 136 U. S., 243, 641, 646. 
Kendall v. U. S., 12 Pet., 619, 628. 
Kennard v. Louisiana, 92 U. S., 649. 
Kennett v. Chambers, 14 How., 635. 
Kentucky v. Dennison, 24 How., 629, 633. 
Kentucky R. R. Tax Cases. See Cincinnati, 

N. O. & T. P. R. R. V. Kentucky. 
Keokuk N. L. Packet Co. v. Keokuk, 95 

U. S., 625. 
Kepner v. U. S., 195 U. S., 640. 
Kidd V. Pearson, 128 U. S., 616, 645. 
Kidd D. & R. Co. v. Musselman Grocer Co., 

217 U. S., 648. 
Kies V. Lowrey, 199 U. S., 624. 
Kilbourn v. Thompson, 103 U. S., 612, 613. 
Kimmish v. Ball, 129 U. S., 427, 633. 
King V. Mullins, 171 U. S., 647. 
Klinger v. Missouri, 13 Wall., 620. 
Knowlton v. Moore, 178 U. S., 614. 
Knoxville v. Knoxville Water Co., 212 U. S., 

648. 
Knoxville Water Co. v. Knoxville, 200 U. S., 

624. 
Kohl V. U. S., 91 U. S., 619, 639. 
Kreiger v. Shelby R. R., 125 U. S., 630. 
Kring v. Missouri, 107 U. S., 623. 

La Abra Silver Min. Co. ». U. S., 175 U. S., 

614, 630. 
Laing v. Rigney, 160 U. S., 632, 646. 
Lake Shore & M. S. R. R. :;. Ohio, 173 U. S., 
617, 
V. Smith, 173 U. S., 647. 
Lamar v. Browne, 92 U. S., 618, 627. 
Lane County v. Oregon, 7 Wall., 610. 
Lang V. New Jersey, 209 U. S., 648. 
Langdeau v. Hanes, 21 Wall., 265n. 
Lange, ex parte, 18 Wall., 620, 632, 639. 
Langford v. U. S., loi U. S., 610. 
Lascelles v. Ga., 148 U. S., 610, 633. 
Laurel Hill Cem. v. San Francisco, 216 U. S., 

648. 
Lawton v. Steele, 152 U. S., 630, 646. 



XXXIV 



TABLE OF CASES 



Leach v. Money, 19 State Trials, 234. 

Lee V. New Jersey, 207 U. S., 617, 631, 648, 

Leeper v. Texas, 139 U. S., 646. 

Lees V. U. S., 150 U. S., 620, 646. 

Legal Tender Case. See Juilliard v. Green- 
man, and Parker v. Davis. 

Lehigh Valley R. R. v. Penn., 145 U. S., 616. 

Lehigh Water Co. v. Easton, 121 U. S., 623. 

Leisy v. Hardin, 135 U. S., 418, 428, 616, 
633, 642, 646. 

Leitensdorfer v. Webb, 20 How., 626. 

Leloup V. Mobile, 127 U. S., 419, 614, 616. 

Lemieux v. Young, 211 U. S., 648. 

Lennon, in re, 150 U. S., 630, 639. 

Lent V. Tillson, 140 U. S., 646. 

Leonard v. Vicksburg S. & P. R. R., 198 
U. S., 631. 

Lewis V. U. S., 146 U. S., 236. 

L'Hote V. New Orleans, 177 U. S., 647. 

License Cases, The. See Thurlow v. Massa- 
chusetts, Fletcher v. Rhode Island, Peirce 
V. New Hampshire. 

License Tax Cases, 5 Wall., 614, 620, 625. 

Lincoln County v. tuning, 133 U. S., 630, 
642. 

Lindsay & P. Co. v. Mullen, 176 U. S., 617. 

Linford v. Ellison, 155 U. S., 639. 

Ling Su Pass v. U. S., 218 U. S., 648. 

Little V. Barreme, 2 Cr., 333. 

Liverpool Ins. Co. v. Mass., 10 Wall., 615, 

633. 
Livingston v. Moore, 7 Pet., 641. 
Locke V. New Orleans, 4 Wall., 620, 622. 
Loewe v. Lawler, 208 U. S., 444. 
Logan V. U. S., 144 U. S., 610, 620. 
Londoner v. Denver, 210 U. S., 648. 
Lone Wolf v. Hitchcock, 187 U. S., 636, 639. 
Loney, in re, 134 U. S., 612. 
Longyear v. Toolan, 209 U. S., 648. 
Lottawanna, the, 21 Wall., 615, 630. 
Loughborough v. Blake, 5 Wheat., 614, 619. 
Louisiana v. Mississippi, 202 U. S., 634. 
V. New Orleans, 215 U. S., 624. 
V, Texas, 176 U. S., 630, 631, 642. 
Louisiana ex rel. Folsom v. New Orleans, 109 

U. S., 623, 645. 
Louisiana ex rel. Ranger v. New Orleans, 102 

U. S., 623. 
Louisiana ex rel. Nelson v. St. Martin's Par- 
ish, III U. S., 623. 
Louisiana ex rel. New G. & 1, Co. v. Steele, 

134 U. S.. 623, 630. 
Louisville & J. Ferry Co. v. Kentucky, 188 

U. S., 617. 
Louisville & N. R. R. v. Central Stockyards 
Co., 212 U. S., 648. 
V. Deer, 200 U. S., 633. 
V. Eubank, 184 U. S., 617. 
V. Gaston, 216 U. S., 648. 
». Kentucky, 161 U. S., 425, 426. 



Louisville & N. R. R. v. Ky., 183 U. S., 617. 
V. Milton, 218 U. S., 648. 
V. Schmidt, 177 U. S., 647. 
V. Woodson, 134 U, S., 645. 
Louisville, C. & C. R. R. v. Letson, 2 How., 

629. 
Louisville Gas Co. v. Citizens' Gas Co., 115 

U. S., 623. 
Louisville, N. O. & T. R. R. v. Mississippi, 

133 U. S., 424, 616. 
Louisville Water Co. v. Clark, 143 U. S., 623. 
Lowe V. Kansas, 163 U. S., 81, 366, 646. 
Lucy, the, 8 Wall., 631, 
Luther w. Borden, 7 How., 619, 620, 628, 629, 

635- 
Luxton V. No. River Bridge Co., 153 U. S., 

616, 620. 
Lyng V. Michigan, 135 U. S., 616. 

McAlister v. Henkel, 201 U. S., 640. 
McAllister v. U. S., 141 U. S., 628. 
McCall V. California, 136 U. S., 4i8n., 616. 
McCardle, ex parte, 6 Wall., 631. 
McCardle, ex parte, 7 Wall., 620, 631. 
McChord v. Louisville & N. R. R., 183 U. S., 

617. 
McClean v. Arkansas, 211 U. S., 648. 
McClellan v. Chipman, 164 U. S., 636. 
McCracken v. Hayward, 2 How.. 622. 
McCray v. U. S., 195 U. S., 640, 642. 
McCready v. Virginia, 94 U. S., 633. 
McCulloch V. Maryland, 4 Wheat., 245, 311, 

335. 336, 432. 610, 614, 619, 625, 634, 635, 

642. 
McCullough V. Virginia, 172 U. S., 624, 631. 
McDonald v. Mass., 180 U. S., 624, 641. 
M'Elmoyle v. Cohen, 13 Pet., 632. 
McElrath v. U. S., 102 U. S., 241, 641. 
McElvaine v. Brush, 142 U. S., 229, 641, 646. 
McGuire v. Mass., 3 Wall., 614. 
McHenry v. Alford, 168 U. S., 646. 
McKane v. Durston, 153 U. S., 633, 646. 
McMillan v. M'Neill, 4 Wheat., 617, 618, 

621. 
McNeill V. So. R. R., 202 U. S., 643. 
McNichols V. Pease, 207 U. S., 620, 633. 
McNiel, ex parte, 13 Wall., 615. 
McNulty V. Cal., 149 U. S., 646. 
McPherson v. Blacker, 146 U. S., 372, 626, 

646, 649, 650. 
Mackin v. U. S., 117 U. S., 639. 
Mager v. Grima, 8 How., 615, 625. 
Magoun v. Illinois Trust & Sav. Bk., 170 

U. S., 647. 
Mahon v. Justice, 127 U. S., 633, 642. 
Maine v. Grand Trunk R. R. Co., 142 U. S., 

616. 
Mallett V. No. Carolina, 181 U. S., 624, 631. 
Manchester v. Mass., 139 U. S., 616, 630, 

642. 



TABLE OF CASES 



XXXV 



Mangan v. State, 76 Ala., 10511. 
Manigault v. Springs, 199 U. S., 624. 
Manning, in re, 139 U. S., 646. 
Manning v. French, 133 U. S., 639, 641. 
Manufacturers' Gas Co. ». Indiana Gas Co., 

155 Ind., 406. 
Marbury v. Madison, I Cranch, 153, 331, 

332, 333, 627, 628, 629. 631, 635. 
Marchant v. Penn. R. R., 153 U. S., 646. 
Marshall v. Baltimore & O. R. R., 16 How., 

629. 
Martin v. Dist. of Col., 205 U. S., 640. 

V. Hunter, i Wheat., 625, 629, 631, 

642. 
V. Mott, 12 Wheat., 619. 
V. Pittsburg & L. E. R. R., 203 U. S., 

617, 618. 647. 
V. Texas, 200 U. S., 632, 641. 
V. Waddell, 16 Pet., 19, 380. 
Marvin v. Trout, 199 U. S., 632, 640, 641. 
Maryland, use of Washington County, v. 

Baltimore & Ohio R. R., 3 How., 622. 
Mason v. Haile, 12 Wheat., 621. 

V. Missouri, 179 U. S., 647. 
Matthews v. Zane, 7 Wheat., 629. 
Mattox V. U. S., 156 U. S., 238, 240, 610, 

640. 
Maxwell v. Dow, 176 U. S., 236, 368, 369, 

647. 
May V. New Orleans, 178 U. S., 625. 
Mayfield v. Richards, 115 U. S., 618. 
May hew v. Thatcher, 6 Wheat., 632. 
Maynard v. Hill, 125 U. S., 623. 
Mechanics' & Traders' Bk. v. Union Bk., 22 

Wall., 627. 
Medley, pet'r, 134 U. S., 623. 
Memphis & C. R. R. v. Tenn., loi U. S., 622. 
Messenger v. Mason, 10 Wall., 265n. 
Meyer v. Richmond, 172 U. S., 630, 647. 
Milburn, ex parte, 9 Pet., 620. 
Millard v. Roberts, 202 U. S., 613. 
Miller v. New York, 15 Wall., 622. 
V. Texas, 153 U. S., 229n. 
V. U. S., II Wall., 618, 639, 640. 
Milligan, ex parte, 4 Wall., 620, 629, 631, 

638, 639, 640. 
Mills V. Duryee, 7 Cr., 632. 
Minneapolis!/. Minn. Str. Ry.,2i5U.S.,624. 
Minneapolis & St. L. R. R. v. Beckwith, 129 
U. S., 358, 645. 
V. Emmons, 149 U. S., 646. 
V. Herrick, 127 U. S., 645. 
V. Minnesota, 186 U. S., 617. 
V. Minnesota, 193 U. S., 640. 
Minneapolis Eastern R. R. v. Minnesota, 

134 U. S., 623. 
Minnesota v. Barber, 136 U. S., 616, 633. 

V. No. Securities Co., 194 U. S., 617, 

TT ^30. 633. 

Minor V. Happersett, 21 Wall., 373, 374, 649. 



Mississippi v. Johnson, 4 Wall., 628, 629. 
Mississippi Railroad Com. v. Illinois Cent. 

R. R., 203 U. S., 617, 643. 
Mississippi & M. R. R. v. McClure, 10 Wall., 
622. 
V. Rock, 4 Wall., 622. 
Missouri v. Illinois, 180 U. S., 630. 

V. Lewis, loi U. S., 645. 
Missouri, K. & T. R. R. v. Haber, 169 U. S., 
616, 636, 642. 
V. McCann, 174 U. S., 617. 
Missouri Pac. R. R. v. Kansas, 216 U. S., 
624, 648. 
V. Mackey, 127 U. S., 645.^ 
V. Nebraska, 164 U. S., 646, 648. 
Mitchell V. Harmony, 13 How., 639. 
Mobile & Ohio R. R. v. Tennessee, 153 U. S., 

623, 631. 
Mobile Transp. Co. v. Mobile, 187 U.S., 630. 
Moffit V. Kelly, 218 U. S., 624. 
Mogul SS. Co. V. McGregor, L. R. 23 Q. B., 

435. 
Monongahela Bridge Co. v. U. S., 216 U. S., 

617. 
Monongahela Nav. Co. v. U. S., 148 U. S., 

639- 
Montague v. Lowry, 193 U. S., 444, 450, 617. 
Montana Co. v. St. Louis Min. Co., 152 

U. S., 646. 
Montello, the, 11 Wall., 615. 
Montgomery v. Portland, 190 U. S., 617. 
Moore v. Illinois, 14 How., 633, 634, 639. 

V. Missouri, 159 U. S., 646. 
Moran, in re, 203 U. S., 640. 
Moran v. New Orleans, 112 U. S., 615. 
Morewood v. Enequist, 23 How., 629. 
Morgan's Louisiana & T. R. & S. S. Co., 118 

U. S., 615, 621, 625. 
Morley v. Lake Shore & M. S. R. R., 146 

U. S., 623, 646. 
Mormon Church v. U. S. See Church of 

Jesus Christ of Latter- Day Saints v. U. S. 
Morris v. Columbus, 102 Ga., 407. 

V. Hitchcock, 194 U. S., 638, 640. 
Morton v. Nebraska, 21 Wall., 265n. 
Moses Taylor, the, 4 Wall., 629. 
Mossman v. Higginson, 4 Dall., 629. 
Motes V. U. S., 178 U. S., 238, 620, 630, 640. 
Moultrie County v. Rockingham Bank, 92 

U. S., 622. 
Mozer v. Peabody, 212 U. S., 648. 
Mugler V. Kansas, 123 U. S., 427, 639. 
Muller V. Dows, 94 U. S., 630. 

V. Oregon, 208 U. S., 610, 648. 
Mulligan v. Corbin, 7 Wall., 622. 
Mumma v. Potomac Co., 8 Pet., 621. 
Munn V. Illinois, 94 U. S., 42 in, 424, 425, 

621, 649. 
Munsey v. Clough, 196 U. S., 633. 
Murdock v. Memphis, 20 Wall., 631. 



XXXVl 



TABLE OF CASES 



Murray v. Charleston, 96 U. S., 622. 

V. Hoboken L. & I. Co., 18 How., 77, 
78, 236, 237, 364, 36s, 628, 629, 
638, 639. 

Nashville Co. & St. L, R. R. v. Alabama, 128 

U. S., 631, 634, 645. 
Nathan v. Louisiana, 8 How., 615. 
National Council v. State Council, 203 U. S., 

624, 647. 
National Mut. BIdg. & Loan Assoc, v. Bra- 

han, 193 U. S., 633. 
Neagle, in re, 135 U. S., 610, 620, 628, 631, 

635- 
Neal V. Delaware, 103 U. S., 650. 
Neely v. Henkel, 180 U. S., 620, 634. 
Neil V. Ohio, 3 How., 622. 
Nelson v. U. S., 201 U. S., 640. 
Neves v. Scott, 13 How., 629. 
New England M. Ins. Co. v. Dunham, 11 

Wall., 630. 
New Hampshire v. La., 108 U. S., 247, 642. 
New Jersey v. New York, 5 Pet., 629, 631. 

V. Wilson, 7 Cr., 621. 
New Mexico ex rel. McLean v. Denver & R. 

G. R. R., 203 U. S., 617, 625. 
New Orleans v. Benjamin, 153 U. S., 623. 
V. DeArmas, 9 Pet., 627, 629. 
V. N. O. Water W'ks, 142 U. S., 623, 
639, 646. 
New Orleans C. & L. R. R. v. New Orleans, 

143 U. S., 623. 
New Orleans Gas Co. v. La. Light Co., 115 

U. S., 623. 
New Orleans Water Works v. La. Sug. Refin. 
Co., 125 U. S., 623, 630. 
V. Rivers, 115 U. S., 623. 
New York v. Hesterberg, 211 U. S., 648. 
V. Louisiana, 108 U. S., 247. 
V. Miln, II Pet., 615. 
New York ex rel. N. Y. Clearing House 

Bldg. V. Barker, 179 U. S., 647. 
New York ex rel. Schurz v. Cook, 148 U. S., 

623. 
New York ex rel. Cutler v. Dibble, 21 How., 

635. 
New York ex rel. Penn. R. R. v. Knight, 192 

U. S., 426. 
New York ex rel. Hatch v. Reardon, 204 

U. S., 617, 647. 
New York ex rel. Parke D. & Co. v. Roberts, 

171 U. S., 616, 647. 
New York ex rel. N. Y. Elec. Co. v. Squire, 

145 U. S., 623, 646. 
New York ex rel. Met. Str. Ry. v. Tax Com., 

199 U. S., 624. 
New York C. & H. R. R. v. U. S., 212 U. S., 

648. 
New York G. & L Co. v. Board of Liquida- 
tion, 105 U. S., 623. 



New York, L. E. & W. R. R. v. Penn., 153 
U. S., 616, 620, 623. 
V. Penn., 158 U. S., 616. 
New York, N. H. & H. R. R. v. New York, 

165 U. S., 616. 
Nicol w. Ames, 173 U. S., 614, 617, 621. 
Nishimura Ekiu v. U. S., 142 U. S., 616, 618, 

619. 
Nobles V. Georgia, 168 U. S., 646. 
Norfolk & West. R.R.z;. Penn., 136 U.S., 616. 
Norris v. Boston, 7 How., 418. 
North American C. S. Co. v. Chicago, 211 

U. S., 648. 
No. Carolina v. Temple, 134 U. S., 623. 
Northern Assoc. Co. v. Grand Bldg. Assoc, 

203 U. S., 633. 
Northern Pac. R. R. v. Duluth, 208 U. S., 

624, 648. 
Northern Securities Co. v. U. S., 193 U. S., 

298, 439-44I* 444i 449- 
Northwestern Life Ins. Co. v. Riggs, 203 

U. S., 647. 
Northwestern Union Packet Co. v. St. Louis, 

100 U. S,, 615, 621, 625. 
Norwich & W. R. R. v. Johnson, 15 Wall., 

620, 622. 
Norwood V. Baker, 172 U. S., 639. 
Nutting V. Mass., 183 U. S., 617. 

Oceanic Steam Nav. Co. v. Stranahan, 214 

U. S., 617. 
Ochiltree v. Iowa R. Contracting Co., 21 

Wall., 622. 
Offield i;. New York, N. H. & H. R. R., 

203 U. S., 624. 
Ogden V. Saunders, 12 Wheat., 618, 620, 621. 
Ohio V. Thomas, 173 U. S., 619, 636. 
Ohio ex rel. Lloyd v. Dollison, 194 U. S., 640. 
Ohio & Miss. R. R. v. Wheeler, i Black, 629. 
Ohio Oil Co. V. Indiana, 177 U. S., 406, 647. 
Old Wayne Life Assoc, v. McDonough, 204 

U. S., 633, 647. 
Olsen V. Smith, 195 U. S., 617. 
O'Neil V. Vermont, 144 U. S., 641. 
Ong Chang Wing z>. U. S., 218 U. S., 648. 
Ontario Land Co. v. York, 212 U. S., 648. 
Orient Ins. Co. v. Daggs, 172 U. S., 647. 
Original Package Cases. See Leisy v. Hardin. 
Osborn v. Bank of the U. S., 9 Wheat., 614, 
628, 629, 642. 
V. Nicholson, 13 Wall., 253n., 346, 
622, 639, 644. 
Osborne v. Florida, 164 U. S., 616. 

V. Mobile, 16 Wall., 615, 
Ouachita Packet Co. v. Aiken, 121 U. S., 

616, 625, 642. 
Owings V. Norwood, 5 Cr., 629. 
V. Speed, 5 Wheat., 621. 
Ozan Lumber Co. v. Union County Bk., 207 

U. S., 648. 



TABLE OF CASES 



XXXVll 



Pace V. Burgess, 92 U. S., 621. 

Pacific Ex. Co. v. Seibert, 142 U. S., 616, 

623, 646, 
Pacific R. R. Co. v. Magxiire, 20 Wall., 

622. 
Pacific R. R. Removal Cases, 115 U. S., 

42on. 
Paddell v. New York, 211 U. S., 648. 
Palmer v. McMahon, 133 U. S., 639. 
Pargoud i*. U. S., 13 Wall. 627. 
Parker v. Davis, 12 Wall., 615, 620, 622. 
Parkinson v. U. S., 121 U. S., 639. 
Parks, ex parte, 93 U. S., 620. 
Parsons v. Bedford, 3 Pet., 241, 641. 
Parsons v. U. S., 167 U. S., 627. • 
Passaic Bridges, the, 3 Wall., 615. 
Passenger Cases, the. See Smith v. Turner, 

Norris v. Boston. 
Patapsco Guano Co. v. Board of Agriculture, 

171 U. S., 426, 427, 616, 625. 
Patterson v. Colorado, 205 U. S., 647. 

V. The Eudora, 190 U. S., 617, 630. 
V. Winn, 5 Pet., 627. 
Patton V. Brady, 184 U. S., 630. 
Paul V. Virginia, 8 Wall., 615, 632, 633, 649. 
Paulsen v. Portland, 149 U. S., 646. 
Paup V. Drew, 10 How., 622. 
Payne v. Hook, 7 Wall., 630. 
Pearce v. Texas, 155 U. S., 633, 639, 646. 
Pearson v. Yewdall, 95 U. S., 641. 
Peete v. Morgan, 19 Wall., 615, 625. 
Peirce v. New Hampshire, 5 How., 417, 418, 

614, 615. 
Pembina Con. Silver Mining Co. v. Pa., 125 

U. S., 359, 633, 645- 661. 
Pennie v. Reis, 132 U. S., 645. 
Pennoyer v. McConnaughy, 140 U. S., 623, 

642. 
Pennyslvania v. Quicksilver Min. Co., 10 
Wall., 631. 
V. Wheeling & B. Bridge Co., 13 How., 

615, 629, 631, 641. 
V. Wheeling & B. Bridge Co., 18 
How., 265n., 615, 618, 621. 
Pennsylvania College Cases, 13 Wall., 622. 
Pennsylvania R. R. v. Knight, 192 U. S., 617. 

V. Miller, 132 U. S., 623. 
Penniman's Case, 103 U. S., 623. 
Pensacola Tel. Co. v. Western Union Tel. Co., 

96 U. S., 419, 615. 
People (New York) v. Comp. Gen. Trans., 

107 U. S., 625. 
People V. Williams Engineering Co., 85 N. 

E. Rep., 407. 
Pervear v. Massachusetts, 5 Wall., 243, 614, 

641. 
Pettibone v. Nichols, 203 U. S., 633. 
Philadelphia v. Collector, 5 Wall., 629. 
Philadelphia & R. R. R. v. Penn., 15 WaU., 

423. 615. 



Philadelphia & So, S. S. Co. v. Penn., 122 

U. S., 616. 
Philadelphia Fire Assoc, v. New York, 119 

U. S., 359, 645. 
Phillips V. Payne, 92 U. S., 619. 
Pickard v. Pullman So. Car Co., 117 U. S., 

615. 
Pierce v. Carskadon, 16 Wall., 620. 

V. Creecy, 210 U. S., 633. 
Pittsburg & So. Coal Co. v. Bates, 156 U. S., 
616, 621, 625, 633. 
V. Louisiana, 156 U. S., 616, 623, 625, 
639, 646. 
Pittsburg C. C. & St. L. R. R. v. Backus, 

154 U. S., 639, 646. 
Planters' Bank v. Sharp, 6 How., 622. 
Plessy V. Ferguson, 163 U. S., 346, 356, 426, 

644, 646. 
Plumley v. Mass., 155 U. S., 616. 
Polk V. Mutual R. F. Assoc., 207 U. S., 624, 

647. 
Pollard V. Hagan, 3 How., 634. 
Pollock V. Farmers' Loan & Trust Co., 157 
U. S., 611, 614, 621, 627, 628, 642. 
V. Farmers' Loan & Trust Co., 158 
U. S., 611. 
Ponce V. Roman Cath. Ch., 210 U. S., 634. 
Poole V. Fleeger, 11 Pet., 625. 
Pope V. Williams, 193 U. S., 373. 
Postal Tel. Cable Co. v. Adams, 155 U. S., 
616. 
V. Charleston, 153 U. S., 616, 620. 
V. Taylor, 192 U. S., 617. 
Powell V. Penn., 127 U. S., 406, 645. 
Powers V. Detroit, G. H. & M. R. R., 201 

U. S., 624. 
Presser v. Illinois, 116 U. S., 233, 619, 638, 

645. 
Prigg V. Penn., 16 Pet., 629, 634. 
Prize Cases, 2 Black, 338, 339, 342. 
Propeller Commerce, the, i Black, 629. 
Prout V. Starr, 188 U. S., 610, 642. 
Providence Bank v. Billings, 4 Pet., 621. 
Providence Inst. v. Jersey City, 113 U. S., 

645- 
Public Clearing House v. Coyne, 194 U. S., 

618, 638, 640. 
Pullman Co. v. Adams, 189 U. S., 426. 
V. Hayward, 141 U. S., 616. 
V. Penn., 141 U. S., 616. 
Pumpelly v. Green Bay Co., 13 Wall., 639. 

Quarles & Butler, in re, 158 U. S., 610, 635, 
646. 

Rahrer, in re, 140 U. S., 616. 

Ramsdell Transp. Co. v. La Cie Generale 

Transatlantique, 182 U. S., 41 8n. 
Randall ». Baltimore & O. R. R., 109 U. S., 

242. 



XXXVUl 



TABLE OF CASES 



Rapier, in re, 143 U. S., 230 and n.,231, 618, 

638. 
Rasmusseni/. Idaho, 181 U. S., 617. 

V. U. S., 197 U. S., 634, 640, 641. 
Ratterman v. Western Union Tel. Co., 127 

U. S., 614. 
Raymond v. Chicago Traction Co., 207 U. S., 

648. 
Reagan v. Farmers' L. and T. Co., 154 U. S., 
422, 425n., 642, 646. 
V. Merc. Trust Co., 154 U. S., 642, 
646. 
Rearick v. Penn., 203 U. S., 617. 
Rcetz V. Michigan, 188 U. S., 624. 
Reggel, ex parte, 114 U. S., 633. 
Reid V. Colorado, 187 U. S., 617. 
Renaud v. Abbott, 116 U. S., 632. 
Rex V. Wilkes, 4 Burr., 234n. 
Reymann Brewing Co. v. Brister, 179 U. S., 

617, 633. 
Reynolds v. Stockton, 140 U. S., 632. 

V. U. S., 98 U. S., 638. 
Rhode Island v. Mass., 12 Pet., I52n., 629, 

631. 633. 
Rhodes V. Iowa, 170 U. S., 616. 
Rice V. Ames, 180 U. S., 627. 
Richmond & A. R. R. v. Patterson Tobacco 

Co., 169 U. S., 616. 
Richmond, F. & P. R. R. v. Louisa R. R., 

13 How., 622. 
Ro 13ards v. Lamb, 127 U. S., 645. 
Roanoke, the, 189 U. S., 617, 630. 
Robbins v. Shelby County Tax. Dist., 120 

U. S., 423, 616. 
Robert W. Parsons, the, 191 U. S., 419. 
Robertson v. Baldwin, 165 U. S., 628, 639, 
644. 
V. Pickrcll, 109 U. S., 632. 
Rochester R. R. v. Vicksburg W. W. Co., 

206 U. S., 624. 
Rogers v. Alabama, 192 U. S., 630. 
Roller V. Holly, 176 U. S., 647. 
Rose V. Himcly, 4 Cr., 629. 
Rosen ». U. S., 161 U. S., 640. 
Ross, in re, 140 U. S., 610, 628, 630, 631, 640. 
Royall V. Virginia, 116 U. S., 623. 
Rusch V. Duncan L. & M. Co., 211 U. S., 648. 

St. Anthony Falls W. P. Co. v. St. Paul 

Water Comm'rs, 168 U. S., 642. 
St. Clair County v. Interstate Transfer Co., 

192 U. S., 617. 
St. Lawrence, the, I Black, 629. 
St. Louis V. United R'ys Co., 210 U. S., 624. 
St. Louis & S. F. R. R. v. Gill, 156 U. S., 639, 
646. 
V. James, 161 U. S., 625, 630. 
V. Mathews, 165 U. S., 624, 646. 
St. Louis, Iron Mt. & S, R. R. v. Paul, 173 
U. S., 647. . 



St. Louis, Iron Mt. & S. R. R. v. Taylor, 210 
U. S., 610, 631. 
V. Vickers, 122 U. S., 630. 
St. Mary's Pet. Co. v. West Va., 203 U. S., 

647. 
St. Paul, M. & M. R. R. v. Phelps, 137 U. S., 

620, 634. 
St. Tammany Water Works v. New Orleans 

W. W., 120 U. S., 623. 
San Antonio Traction Co. v. Altgett, 200 

U. S., 624. 
San Mateo County v. So. Pac. R. R., 116 

U. S., 355. 
Sanchez v. U. S., 216 U. S., 648. 
Sands v. Manistee River Imp. Co., 123 U. S., 

616, 639. 
Santa Clara County v. So. Pac. R. R., 118 

U. S., 355, 356, 358, 645. 
Saranac L. & T. Co. v. Comptroller, 177 

U. S., 647. 
Satterlee v. Matthewson, 2 Pet., 621. 
Sauer v. New York, 206 U. S., 624, 647. 
Savanna, etc. R. R. v. Savannah, 198 U. S., 

624. 
Savings & Loan Soc. v. Multinomah County, 

169 U. S., 647. 
Sawyer, in re, 124 U. S., 229. 
Sawyer v. U. S., 202 U. S., 640, 641. 
Schaefer v. Werling, 188 U. S., 630. 
Schick V. U. S., 195 U. S., 632, 640. 
Schmidt v. Cobb, 119 U. S., 645. 
Scholey v. Rew, 23 Wall., 611, 6x4. 
Schollenberger v. Penn., 171 U. S., 616. 
Schwab V. Berggren, 143 U. S., 646. 
Scott :;. Donald, 165 U. S., 424n., 616, 642. 
V. McNeal, 154 U. S., 370, 646. 
V. Necly, 140 U. S., 106, 623, 641. 
V. Sandford, 19 How., 253, 259, 290 
seq., 329, 330, 337. 338, 344, 345, 
349. 350,351. 461,611,618, 620, 
633. 634, 644. 
Scranton v. Wheeler, 179 U. S., 617, 639, 642. 
Scully V. Bird, 209 U. S., 643. 
Seaboard Air Line v. Florida, 203 U. S., 647. 

V. Seegers, 207 U. S., 648. 
Searl v. School Dist., 133 U. S., 639. 
Security Mut. L. Ins. Co. v. Prewitt, 202 

U. S., 631. 
Security Trust Co. v. Lexington, 203 U. S., 

647. 
Seibert v. Lewis, 122 U. S., 623. 
Sentell v. New Orleans & C. R. R., 166 U. S., 

646. 
Sewmg Mach. Cos.' Case, 18 Wall., 630. J 
Sheldon v. Sill, 8 How., 629. ■ 

Shepard v. Barron, 194 U. S., 640. 
Sherlock v. Ailing, 93 U. S., 615. 
Shevlin-Carpenter Co. v. Minnesota, 2i8 

U. S., 648. 
Shibuya Jugiro, in re, 140 U. S., 646. 



I 



TABLE OF CASES 



xxxix 



Shoemaker v. U. S., 147 U. S., 619, 627, 639. 
Shoener v. Penn., 207 U. S., 640. 
Sibbald v. U. S., 12 Pet., 631. 
Siebold, ex parte, 100 U. S., 612, 626. 
Simmons v. Saul, 138 U. S., 632. 

V. U. S., 142 U. S., 242, 639. 
Sinnot v. Davenport, 22 How., 615, 635. 
Sioux City Str. Ry. v. Sioux City, 138 U. S., 

623. 
Slaughter-House Cases, 16 Wall., 350-353, 

354. 368, 371. 372, 403. 434n., 633, 644, 649. 
Slave Grace, the, 2 Hagg. Adm., 253n. 
Smith V. Alabama, 124 U. S., 616. 
V. Jennings, 206 U. S., 624. 
V. Maryland, 18 How., 615, 629, 638. 
V. Reeves, 178 U. S., 630, 642. 
V. St. Louis & S. W. R. R., 181 U. S., 

617. 
». Turner, 7 How., 418. 
Smyth V. Ames, 169 U. S., 358, 636, 642. 
Society for Propagation of Gospel v. New 

Haven, 8 Wheat., 635. 
Sohn V. Waterson, 17 Wall., 622. 
Sommersett's Case, 20 St. Tr., 253, 344. 
Soon Hing v. Crowley, 113 U. S., 645. 
South. & N. A. R. R. t;. Alabama, loi U. S., 

622. 
South Carolina v. Georgia, 93 U. S., 615. 

V. U. S., 199 U. S., 610, 614, 621, 
631. 635, 636, 640, 642. 
South Dakota v. No. Carolina, 192 U. S., 

630, 642. 
Southern Pac. Co. v. Denton, 146 U. S., 630, 

646. 
Southern Pac. R. R. v. U. S., 200 U. S., 640. 
Southern R. R. v. Greene, 216 U. S., 648. 
Southwestern Coal Co. v. McBride, 185 

U. S., 620. 
Southwestern Oil Co. v. Texas, 217 U. S., 648. 
Spencer v. Duplan Silk Co., 191 U. S., 630. 

V. Merchant, 125 U. S., 630, 645. 
Spies V. Illinois, 123 U. S., 229, 234, 236, 638, 

639, 640. 
Spraigue v. Thompson, 118 U. S., 615. 
Spreckels Sug. Refin. Co. v. McClain, 192 

U. S., 432, 630. 
Springer v. U. S., 102 U. S., 614, 620. 
Standard Oil Co. v. Tennessee, 217 U. S., 648. 
State V. Lowry, 166 Ind., 406. 
State V. Main, 69 Conn., 46. 
State Bank of Ohio v. Knoop, 16 How., 622. 
State Freight Tax Case. See Philadelphia & 

R. R. R. V. Penn. 
State Tax on Foreign-held Bonds, 15 Wall., 

614, 622. 
State Tax on Railway Gross Receipts, 15 

Wall., 613, 625. 
State Tonnage Tax Cases, 12 Wall., 625. 
Steamship Co. v. Port Wardens, 6 Wall., 615. 
Stearns v. Minnesota, 179 U. S., 624. 



Stein V. Bienville Water Supply Co., 141 

U. S., 623. 
Stevens v. Nichols, 157 U. S., 646. 
Stewart v. Kahn, 11 Wall., 618, 628. 
Stockard v. Morgan, 185 U. S., 617. 
Stone V. Farmers' Loan & Trust Co., 116 
U. S., 424, 623, 645. 
V. Illinois Cent. R. R., 116 U. S., 623. 
V. Mississippi, loi U. S., 4x2, 413, 
622, 
Stoutenburgh v. Hennick, 129 U. S., 616, 620. 
Strader v. Graham, 10 How., 265n. 
Strauder v. West Va., 100 U. S., 645, 
Strauss, in re, 197 U. S., 632. 
Strawbridge v. Curtiss, 3 Cr., 629. 
Stuart V. Laird, i Cr., 628. 
Sturges V. Crowninshield, 4 Wheat., 617, 621. 
Sugar Trust Case. See U. S. v. Knight. 
Sugg V. Thornton, 132 U. S., 645. 
Sullivan v. Texas, 207 U. S., 624. 
Sully V. American Nat. Bk., 178 U. S., 633, 

647. 
Supreme Lodge Knights of Pythias v. Meyer, 

198 U. S., 624. 
Suydam v. Broadnax, 14 Pet., 618, 629. 
Swafford v. Templeton, 185 U. S., 630. 
Sweet V. Rechel, 159 U. S., 639. 

Talton V. Mayes, 163 U. S., 634, 639, 646. 
Tampa Water W'ks v. Tampa, 199 U. S., 624 
Tarble's Case, 13 Wall., 620, 630. 
Taylor v. Beckham, 178 U. S., 635, 647. 

V. Taintor, 16 Wall., 633. 

V. U. S., 207 U. S., 640. 
Tennessee v. Davis, 100 U. S., 610, 630. 

V. Pullman So. Car Co., 117 U. S., 

615. 
Terrett v. Taylor, 9 Cr., 638. 
Texas v. White, 7 Wall., 311, 339, 340, 610, 

619, 635. 
Texas & Pacific R. R. Co. v. Interstate Com- 
merce Com., 162 U. S., 421. 
V. Interstate Transfer Co., 155 U. S., 

616. 
V. Southern Pac. R. R., 137 U. S., 
616, 632. 
Thomas v. Texas, 212 U. S., 648. 

V. U. S., 192 U. S., 611, 614. 
Thompson v. Kentucky, 209 U. S., 648. 
V. Missouri, 171 U. S., 624. 
V. Utah, 170 U. S., 624, 631, 634. 
V. Whitman, 18 Wall., 632. 
Thomson v. Union Pac. R. R., 9 Wall., 615, 

620. 
Thorington v. Montgomery, 147 U. S., 639, 

646. 
Thormann v. Frame, 176 U. S., 632. 
Thurlow V. Massachusetts, 5 How., 417, 614, 

615. 
Tilt V. Kelsey, 207 U. S., 633. 



xl 



TABLE OF CASES 



Tindal v. Wesley, 167 U. S., 642. 
Tinsley v. Anderson, 171 U. S., 639, 647. 

V. Treat, 205 U. S., 632, 641. 
Tomlinson v. Branch, 15 Wall., 622. 

D. Jessup, 15 Wall., 622. 
Tonawanda v. Lyon, 181 U. S., 639. 
Traction Co. v. Mining Co., 196 U. S., 631. 
Tracy v. Ginzberg, 205 U. S., 647. 
Trade-Mark Cases. See U. S. v. Steffens. 
Travelers' Ins. Co. v. Conn., 185 U. S., 633. 
Trevett v. Weeden (R. I.), 104 and n. 
Trono v. U. S., 199 U. S., 640. 
Tullis V. Lake Erie R. R., 175 U. S., 647. 
Tullock V. Mulvane, 184 U. S., 630. 
Turner v. New York, 168 U. S., 646. 
Turnpike Co. v. State, 3 Wall., 622. 
Turpin v. Burgess, 117 U. S., 621. 
Twin City Bank v. Nebeker, 167 U. S., 613, 

614. 
Twining v. N. J., 211 U. S., 79, 82, 236, 366, 

367. 369. 370, 640, 648. 
Twitchell v. Penn., 7 Wall., 229n., 639. 
Tyler, in re, 149 U. S., 610, 642. 
Tyler v. Defrees, 11 Wall., 618. 

Ughbanks v, Armstrong, 208 U. S., 641, 648. 
Union Bridge Co. v. U. S., 204 U. S., 610, 

617, 640. 
Union Pac. R. R. v. Peniston, 18 Wall., 61A, 

620. 
U. S. V. Alexander. See Alexander's Cotton. 
V. Amedy, 11 Wheat., 632. 
V. American Tobacco Co., 166 U. S., 

442. 
V. Arjona, 120 U. S., 618. 
V. Arredondo, 6 Pet., 629. 
V. Ballin, 144 U. S., 612, 613, 614. 
V. Beebe, 127 U. S., 630. 
V. Bevans, 3 Wheat., 619, 629. 
V. Bitty, 208 U. S., 631. 
V. Booth, 21 How., 620, 631, 634, 635. 
V. Burr (Circuit Court), 4 Cr., 251, 

252, 632. 
V. Church of Jesus Christ of Latter- 

Day Saints, 150 U. S., 294n. 
V. Cook, 17 Wall., 640. 
V. Coolidge, i Wheat., 640. 
V. Coombs, 12 Pet., 615. 
V. Cruikshank, 92 U. S., 232, 273, 

373, 638, 640, 649, 650. 
V. Delaware & Hudson R. R., 213 

U. S., 617, 640. 
V. DeWalt, 128 U. S., 639. 
V. Dewitt, 9 Wall., 619. 
V. Fisher, 2 Cr., 333. 
V. Fox, 94 U. S., 619. 
V. Gettysburg Electric Ry. Co., 160 

U. S., 406. 
V. Gratiot, 14 Pet., 634. 
V. Hamilton, 3 Dall., 620. 



U. S. V. Heinszen, 206 U. S., 610, 634, 640. 

V. Heinze, 218 U. S., 648. 

V. Holliday, 3 Wall., 615. 

V. Hudson, 7 Cr., 629. 

V. Insurgents, 2 Dall., 632. 

V. Joint Traffic Assoc, 171 U. S., 444. 

V. Jones, 109 U. S., 610. 

V. Ju Toy, 198 U. S., 620, 640. 

V. Kirkpatrick, 9 Wheat., 627, 628. 

V. Klein, 13 Wall., 627. 

V. E. C. Knight Co., 156 U. S., 298, 
436, 437, 448, 449, 610, 616. 

V. La Vengeance, 3 Dall., 629, 641. 

V. Lynah, 188 U. S., 617, 639. 

V. Marigold, 9 How., 615, 618. 

V. Mills, 7 Pet., 640. 

V. Mitchell, 2 Dall., 632. 

V. More, 3 Cr., 629. 

V. Ortega, 11 Wheat., 629, 631. 

V. Padelford, 9 Wall., 627. 

V. Palmer, 3 Wheat., 618, 

V. Perez, 9 Wheat., 639. 

V. Peters, 5 Cranch, 333, 334, 628. 

V. Realty Co., 163 U. S., 614. 

V. Railroad Co., 17 Wall., 322. 

V. Reese, 92 U. S., 373, 650. 

V. Ritchie, 17 How., 628. 

V. Rogers, 4 How., 634, 

V. Sing Tuck, 194 U. S., 620. 

V. Singer, 15 Wall., 614. 

V. Smith, 5 Wheat., 618. 

V. Stanley, 109 U. S., 346, 357, 644, 
645- 

V. Steffens, 100 U. S., 618. 

V. Texas, 143 U. S., 630, 631. 

V. Trans-Missouri Freight Associa- 
tion, 166 U. S., 436, 437, 438, 439, 
444, 449- 

V. Waddell, 112 U. S., 612, 650. 

V. Forty-three Gallons of Whiskey, 
93 U. S., 615. 

V. Wilson, 7 Pet., 627, 

V. Wiltberger, 5 Wheat., 618. 

V. Wong Kim Ark, 169 U. S., 354,, 
358, 647. 

V. Zucker, 161 U. S., 640. 
U. S. exrel. Bernardin v. Duell, 172 U. S.,6l8. 
U. S. ex rel. Goodrich v. Guthrie, 17 How., 

629. , 

U. S. ex rel. Siegel v. Thoman, 156 U. S., 624. 1 
U. S. ex rel. Turner v. Williams, 194 U. S., * 

628, 638, 640, 642. 
U. S., use of Mackey, v. Coxe, 18 How., 634. 
Utter V. Franklin, 172 U. S., 633. 

Vallandigham, ex parte, i Wall., 620, 628, 

629. 
Van Allen v. Assessors, 3 Wall., 614. 
Vance v. Vandercook, 170 U. S., 424n., 616. 
Vannevar v. Bryant, 21 Wall., 630. 



TABLE OF CASES 



xH 



Veazie v. Moor, 14 How., 615. 

Veazie Bank i-. Fenno, 8 Wall., 611, 614. 

Vicksburg v. Tobin, 100 U. S., 625. 

V. W. W. Co., 202 U. S., 624. 
Vidal V. Gerard, 2 How., 638. 
Vincennes Univ. v. Indiana, 14 How., 622. 
Virginia Coupon Cases, 114 U. S., 270. 
Virginia, ex parte, 100 U. S., 45, 226, 620, 

644, 645. 
Virginia v. Rives. See Virginia, ex parte. 

V. Tennessee, 148 U. S., 625. 

V. West Va., 11 Wall., 630. 
Virginia Coupon Cases, 135 U. S., 623, 642. 
Von Hoflfman v. Quincy, 4 Wall., 622. 

Wabash & Erie C. Co. v. Beers, 2 Black, 622. 
Wabash R. R. v. Flannigan, 192 U. S., 633. 

V. Pearce, 192 U. S., 630. 
Wabash, St. L. & Pac. R. R. Co. v. Illinois, 

118 U. S., 4i8n., 615, 616. 
Walker v. McLoud, 204 U. S., 647. 

V. New Mex. & So. Pac. R. R., 165 
U. S., 641. 

r. Whitehead, 16 Wall., 622. 

V. Sauvinet, 92 U. S., 649. 
Wall, ex parte, 107 U. S., 631. 
Walla Walla 0. W. W. Water Co., 172 U. S., 

624. 
Wallace v. Parker, 6 Pet., 265n. 
Wallach v. Van Riswick, 92 U. S., 627, 632. 
Walling V. Michigan, 116 U. S., 615. 
Walsh V. Columbus, H. V. & A. R. R.. 176 

U. S., 624. 
Walston V. Nevin, 128 U. S., 645. 
Ward V. Mar>'land, 12 Wall., 633, 649. 

V. Race Horse, 163 U. S., 610, 634, 

635. 
Ware v. Hylton ,3 Dallas, 130, 627, 635. 

V. Mobile Count>', 209 U. S., 617. 
Waring v. Clarke, 5 How., 629. 

V. Mobile, 8 Wall., 615, 625, 
Washington Univ. i;. Rouse, 8 Wall., 622, 
Waters- Pierce Oil Co. v. Deselms, 212 U. S., 
648. 

V. Texas, 212 U. S., 624, 648. 
Watkins, ex parte, 3 Pet., 620. 
Watson V. Marj'land, 218 U. S., 648. 

V. Mercer, 8 Pet., 620, 621. 
Wayman v. Southard, 10 Wheat., 619, 631. 
Webster v. Reid, 11 How., 641. 
Wedding v. Meyler, 192 U. S., 633. 
Welch V. Swasey, 214 U. S., 648. 
Wells, ex parte, 18 How., 627. 
West V. Louisiana, 194 U. S., 640. 
West Chicago Str. R. R. v. Chicago, 201 

U. S., 624. 
West River Bridge Co. v. Dix, 6 How., 622, 

West Wisconsin R. R. v. Supervisors, 93 
U. S., 622. 



Western Turf Assoc, v. Greenberg, 204 U. S., 

647. 
Western Union Tel. Co. v. Alabama, 132 
U. S., 616. 

V. Ann Arbor R. R., 178 U. S., 630. 

V. Commercial Milling Co., 218 U. S., 
648. 

V. Indiana, 165 U. S., 646. 

V. James, 162 U. S., 616. 

V. Mass., 125 U. S., 616. 

V. Missouri, 190 U. S., 426, 

V. New Hope, 187 U. S., 617. 

V. Pendleton, 122 U. S., 616, 642. 

V. Penn. R. R. 195 U. S., 617, 618. 

V. Taggart, 163 U. S., 616, 646. 
W. U. Tel. Co. V. Texas, 105 U. S., 424n. 
Weston V. Charleston, 2 Pet., 614. 
Wetmore v. Karrick, 205 U. S., 633. 
Weyerhaueser v. Minnesota, 176 U. S., 647. 
Wharton v. Wise, 153 U. S., 625. 

V. Peters, 8 Pet., 618. 
Wheeler v. Jackson, 137 U. S., 623, 639, 646. 

V. New York, N. H. & H. R. R., 178 
U. S., 647. 
Wheeling & B. Br. Co. v. WheeUng Br. Co., 

138 U. S., 623. 
White V. Hart, 13 Wall., 246, 622, 644. 
White's Bank v. Smith, 7 Wall., 615. 
Whitehead v. Shattuck, 138 U. S., 641. 
Whitney v. Robertson, 124 U. S., 635. 
Wight V. Davidson, 181 U. S., 619, 639. 
Wiley V. Sinkler, 179 U. S., 611, 630. 
Wilkes V. Wood, 19 St. Trials, 234. 
Wilkes County v. Coler, 180 U. S., 613, 614, 

631, 632. 
Willamette Bridge Co. v. Hatch, 125 U. S., 

616. 
Willard v. Presbury, 14 Wall., 619. 
Williams v. Arkansas, 217 U. S., 648. 

V. Bruffy, 96 U. S., 610. 

V. Eggleston, 170 U. S., 624, 647. 

V. Fears, 179 U. S., 617, 621, 633, 
647. 

V. Mississippi, 170U. S., 374, 375, 647. 
Williamson v. New Jersey, 130 U. S., 623. 

V. U. S., 207 U. S., 613. 
Wilmington & W. R. R., v. Alsbrook, 146 
U. S., 623. 

V. King, 91 U. S., 622. 

V. Reid, 13 Wall., 622. 
Wilmington Min. Co. v. Fulton, 205 U. S., 

647. 
Wilson, ex parte, 114 U. S., 639. 
WUson V. Black Bird C. M. Co., 2 Pet., 615. 

V. Eureka, 173 U. S., 647. 

V. Lambert, 168 U. S., 639. 

V. McNamee, 102 U. S., 615. 

V. No. Carolina, 169 U. S., 647. 

V. Shaw, 204 U. S., 617. 
Winnebago, the, 205 U. S., 631. 



xlii 



TABLE OF CASES 



Winona & St. P. Land Co. v. Minnesota, 159 
U. S., 623, 646. 
V. Plainview, 143 U. S., 623. 
Wiscart v. Dauchy, 3 Dall., 631. 
Wisconsin v. Pelican Ins. Co., 127 U. S., 630, 

Wisconsin Cent. R. R. v. Price County, 133 

U. S., 634. 
Wisconsin, M. & P. R. R. v. Jacobson, 179 

U. S., 451, 617, 647. 
Wisner, ex parte, 203 U. S., 628. 
Withers v. Buckley, 20 How., 639, 640. 
Wong Wing v. U. S., 163 U. S., 640. 
Woodruff V. Mississippi, 162 U. S., 624, 631. 
V. Parham, 8 Wall., 614, 625, 633. 
V. Trapnall, 10 How., 622. 



Worcester v. Georgia, 6 Peters, 335, 615, 627, 

635. 
Wright V. Georgia R. & B. Co. 216 U. S., 624. 

V. Nagle, loi U. S., 622. 
Wurts V. Hoagland, 114 U. S., 645. 

Yamataya v. Fisher, 189 U. S., 639. 
Yarbrough, ex parte, no U. S., 611, 612, 650. 
Yazoo & Miss. R. R. v. Vicksburg, 209 U. S., 

624. 
Yerger, ex parte, 8 Wall., 620, 629, 631. 
Yesler v. Wash. H. L. Com., 146 U. S., 639, 

646. 
Yick Wo V. Hopkins, 118 U. S., 267n., 645. 
York V. Texas, 137 U. S., 646. 
Young, ex parte, 209 U. S., 643, 648. 



THE ORIGIN AND GROWTH 
OF THE 

AMERICAN CONSTITUTION 



THE ORIGIN AND GROWTH OF THE 
AMERICAN CONSTITUTION 

CHAPTER I 

INTRODUCTORY 



No effort was ever made to write the history of the English Sources of 
Constitution until very recent times, and when the work did ^°s^?** ^^ 

- . . . American 

begin the historians confined themselves almost entirely to the Constitutions 
aftergrowth, leaving the initial period, the starting-point of only recently 
everything, almost untouched. Hallam began his "Constitu- 
tional History" with the accession of the House of Tudor, — 
three meagre chapters in the "Middle Ages" contain all he 
desired to say of the formative epoch. Macaulay's " History 
of England" really begins with the accession of the House of 
Stuart, — into a single chapter are condensed the reflections 
of the most brilliant and inquisitive of Englishmen upon the ten 
eventful centuries preceding that event. Only within the last 
seventy years have the charters, chronicles, and memorials in 
which was entombed the early history of the English Constitu- 
tion been made accessible ; and only within the last forty have 
they been subjected to the final analysis which at last ex- 
tracted from them their full and true significance.^ In the same 
way the three most famous foreign expounders of the American 



* The good work feebly begun by 
Sharon Turner in his History of the 
Anglo-Saxons, published between 
1799 and 1805, was greatly ad- 
vanced by Kemble, who published 
his Codex Diplomaticus M,vi Saxonici 
in 1839, and his Saxons in England in 
1848. Thorpe published his Ancient 
Laws and Institutes of England in 
1840; Sir Francis Palgrave, The Rise 
and Progress of the English Common- 
wealth in 1832, and the History of 



Normandy and England, 1851-64. 
Not, however, until Freeman had 
completed his History of the Norman 
Conquest, not until Bishop Stubbs 
had completed the Constitutional 
History, the Select Charters, and 
"the wonderful prefaces" — all 
within very recent years — did the 
grand inquest into the sources of the 
English Constitution which Kemble 
and Palgrave had inaugurated, 
reach a definite and final result. 



a nm American constitution ich. 

Constitution l\.i\o vliwit siMi»>iish ouW with its afterRTowth, 

witlnnit .in\ umUiKmI li> .i:.rri(.nn 1 In- soiin-o from whirh the 

iMitiivly now pl.ui ot tviU-ial >;i>\ im iuiumiI it embodies was 

dtMival. Thoir work Ivv^ati with tho nMiiarkablc siMiis ot oh- 

Tttwjvifvillc. ^.^■l^.uun\s puMi:lu\l in iS;_s I'N ,\l^-\i^; ilr 1\hiiiu-\ illi\ " Ho la 

**M' «,Umui>i I. i(u" Oil Aimniquo, " a tuMlisc ini diMiionai)' in goniMal, 

with sdikini; illnstrations ihawn tioni its Atnoriran history. 

By far tho most nv>i.iMr \\\\[ oi ih.if piMfonnanoo was onibod- 

ieil in tho lUvlaiaiiou that o\iv sov\nul luHlotal C\M\stitntion of 

1780 is basinl "npiMi a wholly i\ovol tluH>ry which may bo oon- 

siiloioil a v:u'.i( <,li^.^•o^•ory in n\oilon\ politioal vsoiiiuo. . . . The 

Amoiioau staios, which combined in 17S0, a>;iood i\\M the 

FedoraUu>vornn\ont shi>nKl not only diet. iti but slunild execute 

its own enactments. In both cases the riviht is tho s.imo. but 

the exercise of the rii;ht is ditToitMit; ami this ditloioiuo prtv 

ductxl the mivst momontmis constHiuoncos." ' 'l\x\iiie\ illo w.is 

the tirst to inform trKtinod studot\ts oi iUc soii-iuo ot politics 

that upon the ruit\s of tho Articles of C\n\t\\loiaiion aw entirely 

new finloral fabric had arisen without a prototype in history, — 

Hts dtacription a fabric basixl on a "wholly novel thiH^ry." Rut bo>ond that 

ot the wholb' noii\t ho did not attempt to uo; as to the origin or authorship 
nowltheoT)-. * , .. ,. . ' , ,. . , . ,, , j 

of the i^ioat discxnery u\ modern political vscionce, he made 

noinquiry whato^ or. To that part of tlu^ subject he contributed 
only a barren statoniout: "This national convention (.1787), 
after lonii and tuaturo deliberation, otYortxl to the acceptance of 
the jxxtplo tho bod> of i^onoral laws which still rules tlie Union. 
All the states adopti\l it sucoossi\oly." * 
Von Hokt. Forty years later wo h.i\ o " Iho Constitutional and Political 

*^'-"^- History of the luitod States." by Dr. H, von Hoist, who 

signer.! his preface at IVoiburi; in 1875. The fact that his first 
chapter is entitUxl, "The Origin of the Union, the Confixlera- 
tion, and the Struggle for the Present Constitution," is a clear 
indication that he felt calUxl upon to make some explanation 
as to the origin of the "wholly novel theory" of iVxleral govern- 
ment the existing Constitution embodies. The result, however, 
was only this unedif>-ing recitation: "Nearly four months 
elapsed before the deleg;ites could agree upon a plan of which 
they said to themselves, with Hamilton, that it is not possible 

» Democracy in Amaica, i, 198, • Ibid., i, 14a. 
199, Bo\v'en ed. 



U INTRODUCTORY 

to hesitate between the prospect of sedng good come from it, 
and anarchy and confusion. On the 17th of SeptfrmU^ it wa» 
unanimously resolved that the plan should be adopted by the 
states represented at the time, which was done." And ycrt 
despite that colorless and inaccuraU; description of what actu- 
ally occurred on the day the Qmvention adjourned, Von Hoist, 
with his critical and practical German mind, did deatiy ffer' 
ceive the absurdity, the childishness of what he well termed 
the "Inspiration Theory," by which he said the American Kidkukstbe 
people were enthralled. To use his own wc»rds: "The masses of ^JJjjJ^^ 
the American people, in their vanity and too great self-appre- 
ciation, are fond of forgetting the dreadful struggle of 1787 and 
1788, or of employing it only as a name for the 'divine inspira* 
tion' which guided and enlightemed the 'fathers' at Phil- 
adelphia. . . . This is not a mere idle phrase; it is one of the 
standing formulas in which the self-complacency and pride of a 
people who esteem themselves ^)edal objects of the care of the 
Ruler of the Universe find cxpresMon. Wc reproduce one 
illustration of this, out of a whole multitude. In the 'North 
American Review' (1H62, i, lOo; we read: 'Such a govcsra- 
ment we regard as more than the expression of calm wisdom 
and lofty patriotism. It has its distinctively providential ele- 
ment. It was God's saving gift to a distracted and imperiled 
people. It was his creative fiat over a weltering chaos: 'Let a 
nation be bom in a day.' " * After ridiculing in that fashion the F«fc to cnai' 
grotesque assumption he was the first to label the " Inspiration *"* ***"*'*' 
Theory," Von Hoist adds: " In Europe this view of the case has 
been gener^dly accepted as correct." Thus it aj^iears that while 
the broad and philosophical German publidst made no real 
attempt to ascertain the source from wfaidi the new American 
type of federal government was derived^ he was fully impressed 
with the pitiful absurdity of attributing to it a supernormal 
origin through a "creative fiat" from on high. 

In 1888 appeared "The American Commonwealth," by the Bfyee, rt», 
Rt. Hon. James Bryce, a monumental work jnaised by all, ^Swd.*"*^ 
whose primary 'purpose is dedared to be the ascntainment 
of "three main things that one wishes to know about a na^ 
tional commonwealth, viz., its framework and constitutional 
machinery, the methods by which it is worked, the forces 
* Vol. i, pp. 6^-63, aad note I ott p. 6:3. 



4 THE AMERICAN CONSTITUTION [Ch. 

^ which move it and direct its course."-! When this now famous 
exposition is viewed as a whole, it clearly appears that its 
primary purpose is to describe the operation of the "constitu- 
tional machinery," after the unique federal fabric of 1789 had 
entered upon its career. In so limiting the scope of the work the 
author says; "How did so complex a system arise, and what 
influences have moulded it into its present form? This is a 
question which cannot be answered without a few words of his- 
torical retrospect. I am anxious not to stray far into history 
because the task of describing American institutions as they 
now exist is more than sufficiently heavy for one writer and one 
•> book." ^ Then follows a brief chapter entitled "The Origin of 
the Constitution," a title clearly indicating that some explana- 
tion is to be made as to the source from which the "wholly 
novel theory" of federal government embodied in the Constitu- 
tion was derived. Nothing could be more profoundly disap- 
Faiiure to re- pointing than the result. There is no recognition whatever of 
cognize origin- ^^^ ^^^^ ^j^^^ ou^ of ^j^g ^q^]^ of the Federal Convention 

ality of new r i i r i • • i • i • 

federal system, emerged a new federal fabric without a prototype in history, 
— a federal fabric armed for the first time with the power to 
■^ ^tax; a federal fabric divided for the first time into three de- 
')^ partments, executive, legislative, and judicial; a federal fabric 
endowed for the first time with ^ two-chamber legislature; 
a federal fabric endowed for the first time with a judiciary, 
capable of putting the stamp of nullity on national and state 
laws; a federal fabric operating for the first time directly on 
individuals and not on states as corporations. As attributes of 
a federal government these five were "absolutely new." Against 
Tocqueville's unanswerable declaration that "this Constitu- 
tion . . . rests in truth upon a wholly novel theory which may 
be considered a great discovery in modern political science," 
a discovery which has "produced the most momentous conse- 
quences," Mr. Bryce sets only the negative and entirely inade- 
quate statement that "There is little in this Constitution that 
is absolutely new. There is much that is as old as Magna 
^ Carta.' '^There is an entire failure to differentiate the new federal 

^ Vol. i, p. 5. so luminously stated by Tocqueville, 

* Ibid. 18. that a "wholly novel " form of fed- 

* Ibid. 29. The statement is in- eral government had come into ex- 
adequate and misleading because it istence, endowed with five basic 
refuses to admit the manifest fact, attributes never before possessed by 



I.] INTRODUCTORY « 

fabric — as unlike any preexisting federal fabric as a modern 
mogul engine is unlike an ancient stagecoach — from the tradi- 
tional English law worked into it as a part of its machinery. 
No federal principle embodied in the American Constitution No federal 
was derived from the mother country, for the simple and con- p^^^^p'^ ^^- 
clusive reason that in the consolidated state known as England England. 
there is no federalism in any form. Great as the fathers were, 
they could not draw from an empty well. After the path-break- 
ing idea of a federal government with the power to tax had 
been established as the basic concept, a self-sustaining federal 
system resulted as a corollary; and the several parts of that 
system were then organized according to English law and 
practice. Why was it that the three famous foreign expound- 
ers of the American Constitution, who have so learnedly and 
luminously drawn out its aftergrowth, failed to shed any light 
whatever upon the origin of the unique federal creation it 
embodies? The answer is easy. The fault lies at the door of Fault of Amer- 

American historical scholarship, which had failed to furnish '^a^ liistoncal 

^' scholarship. 

them with the necessary data. No attempt was made here to 
write the history of the proceedings of the Federal Convention 
until sixty-seven years after its adjournment; and the tardy 
inquiry then instituted has only reached the sources within, 
the last few years. 

The Federal Convention of 1787, which shrouded its pro- Federal Con- 
ceedings in a secrecy as profound as that which incloses a ma- "^^^^^^^ ^^r^t 

. as masonic 

sonic lodge, sealed its records at the close and committed them lodge. 
to Washington with the injunction "that he retain the Journal 
and other papers subject to the order of Congress, if ever 
formed under the Constitution." ^ It was understood that the 
members would regard all that occurred as confidential, and 
in general that understanding was lived up to. Both Washing- 
ton and Madison earnestly insisted that the proceedings of the 
Convention should not be made public during the lifetimes of 
the members, or at least not so long as the opinions any mem- 
ber might have expressed in debate should in any way be used 
to his prejudice.^ Not until 181 8 did Congress partially break 

any federal system, and therefore Documentary History of the Consti- 

"absolutely new." tution, v, 310; Max Farrand's ad- 

^ Documentary History of the Con- mirable monograph, entitled The 

stitution, iii, 769-770. Records of the Federal Convention, 

* J. Q.Adams, Memoirs, iv, 175; 45. Reprinted from The American 



THE AMERICAN CONSTITUTION 



[Ch. 



Seal only par- 
tially brokea 
in 1818. 



Full record 
not published 
until 1841. 



Story's com- 
mentary, 1840. 



Only a color- 
less statement. 



the seal of that secrecy by a joint resolution directing the pub- 
lication of the ' ' Journal . . . and all Acts and Proceedings ' ' of 
the Convention in possession of the Government.^ But through 
that disclosure we received only a fragment, as the so-called 
Journal had been made up by an official secretary who, either 
through incompetence or neglect, kept what, according to 
Adams, "were no better than the daily minutes from which the 
regular Journal ought to have been, but never was, made out." ^ 
The real record of the proceedings of the Convention, prepared 
by the semi-official reporter, James Madison, and now em- 
bodied in the three volumes of his priceless "Papers," was not 
pubUshed by Gilpin until 1841. In that way fifty-four years 
passed by, after the adjournment of the Convention, before the 
full report of its secret proceedings was given to the world. 
During that half-century of mystery and suppression it was 
that the mythical history of what actually took place in the 
secret conclave crystallized into a series of misty and misleading 
impressions so fixed in the minds of many that it is now dif- 
ficult to dislodge them even with the aid of clear and explicit 
documentary evidence. "My siege is finished," exclaimed 
Vertot, when offered new documents which stultified his narra- 
tive. In the same spirit many of the devotees of the " Inspira- 
tion Theory," so justly ridiculed by Von Hoist, still respond 
even when the connected documentary history of all that 
occurred is offered them. 

In 1840, just a year before the publication of the "Madison 
Papers," Mr. Justice Story published "a brief commentary on 
every clause [of the Constitution], explaining the true nature, 
reasons, and objects thereof; designed for the use of school 
libraries and general readers." From the three pages devoted 
to the "Origin of the Constitution" only this can be extracted: 
" Congress adopted the recommendation of the Report, and in 
February, 1787, passed a resolution for assembling a Conven- 
tion accordingly. All the states, except Rhode Island, appointed 
delegates ; and they met at Philadelphia. After very protracted 
deliberations, and great diversities of opinion, they finally, on 



Historical Review, vol. xiii, no. i, 
Oct., 1907. 

^ The Journal, Acts and Proceed- 
ings were printed at Boston, 18 19. 



The Journal was reprinted in 1 830 
as vol. iv of 1st ed. of Elliott's De- 
bates. 
* J. Q. Adams, Memoirs, iv, 385. 



M INTRODUCTORY 

the 17th of September, 1787, framed the present Constitution 
of the United States, and recommended it to be laid by the 
Congress before the several states, to be by them considered 
and ratified, in conventions of the representatives of the peo- 
ple, to be called for that purpose." i^ Nothing more was said by 
one of the most cultured jurists of that epoch as to the origin of 
the "wholly novel theory" of federal government, described by 
Tocqueville five years before as "a great discovery in modern 
political science" which had "produced the most momentous 
consequences." The midnight was still deep indeed. 

Not until sixty-seven years after the adjournment of the George Tick- 
Federal Convention did an American attempt to write the ^°^ Curtis, 
"History of the Origin, Formation, and Adoption of the Con- 
stitution of the United States." That attempt, made by Mr. 
George Ticknor Curtis in 1854, opens with the statement that 
"A special history of the origin and establishment of the Con- 
stitution of the United States has not yet found a place in our 
national literature."^ When we look into that first effort for "^ 
light as to the origin of the "wholly novel theory" of federal 
government we are told, in a description of conditions imme- 
diately preceding the meeting of the Convention, that "The 
idea of a Union founded on the direct action of the people of the 
states, in a primary sense, and proceeding to establish a federal 
government, of limited powers, in the same manner in which 
the people of each state had established their local constitu- 
tions, had not been publicly broached, and was not generally 
entertained."^ That statement was made in the teeth of the 
fact that four years before, as early as February 16, 1783, 
Pelatiah Webster had published at Philadelphia at the very Pdatiah 
doors of Congress a pamphlet of forty-seven pages, not only Webster's 
discussing publicly the entire subject, but putting forth as his ^cont'inental 
invention the vitals of the new system adopted at Philadelphia Convention," 
in 1787. Mr. Curtis tells us that "The first public proposal ^'^' 
of a Continental Convention is assigned by Mr. Madison to 
one Pelatiah Webster, whom he calls * an able, though not con- 
spicuous citizen,' and who made this suggestion in a pamphlet 
published in May, 1781. Recent researches have not added to 
our knowledge of this writer.")^ If those researches had been 

1 Page 34. V » Vol. i, p. 373. 

' First words of the preface. *_ Ibid., p. 350, note 3. 



THE AMERICAN CONSTITUTION 



[Ch. 



Curtis's misty 
platitude. 



a little more diligent, Mr. Curtis would have found the epoch- 
making paper of February i6, 1783, which would have saved 
him from the confession that he really had nothing to offer as 
an explanation of the origin of the new system whose history 
he was the first to write. His only contribution to the question 
of questions is this: "The Constitution of the United States 
was eminently the creature of circumstances; — not of circum- 
stances blindly leading the blind to an unconscious submission 
to an accident, but of circumstances which offered an intel- 
ligent choice of the means of happiness, and opened, from the 
experience of the past, the plain path of duty and success, 
stretching onward to the future." ^ While Mr. Curtis declined 
to restate the " Inspiration Theory " in clear and definite terms, 
he admitted negatively by that misty and pointless platitude 
that he had nothing whatever to substitute for it. 
Banaoft, 1882. In 1882 the Hon. George Bancroft published his "History 
of the Formation of the Constitution of the United States of 
America," in two volumes, devoted to the proceedings of the 
Federal Convention of 1787, and the events out of which it 
arose. By that time the midnight had begun to break a little. 
Bancroft had heard not only of Pelatiah Webster's call for a 
Continental Convention to make an entirely new Constitution, 
put forth in 1781, but also of the great paper of February 16, 
1783, to which he refers in these terms: "The public mind was 
ripening for a transition from a confederation to a real govern- 
ment. Just at this time Pelatiah Webster, a graduate of Yale 
College, in a dissertation published at Philadelphia, proposed 
for the legislature of the United States a Congress of two 
houses which should have ample authority for making laws * of 
general necessity and utility,' and enforcing them as well on 
individuals as on states. He further suggested not only heads 
of executive departments but judges of law and chancery. The 
tract awakened so much attention that it was reprinted in 
Hartford, and called forth a reply." ^ If Bancroft ever read as 
a whole the great document in question — an assumption his 
vague and trivial reference to it goes far to rebut — he entirely 
missed the path-breaking concept with which it opens and 
upon which its importance depends. He makes no reference 
whatever to Webster's proposal of a self-sustaining federal 
* Curtis, i, 382. » Bancroft, i, 86.. 



Reference to 
paper of Feb 
16, 1783. 



Failure to 
grasp its 
meaning. 



I.l INTRODUCTORY 9 

system with the sovereign power to tax, — a power never pos- . 
sessed before by any federal government in the world's history. I 
But if Bancroft, who was a layman not a jurist, failed to per- 
ceive that in Webster's invention originated the "wholly novel 
theory" described by Tocqueville, he did realize the import- 
ance of the "plans," carefully prepared beforehand, through 
which the "great discovery in modern political science" passed 
from the inventor to the Convention itself. And yet he fell 
into grave confusion as to the history of those plans, the 
second of which he called the " Connecticut plan," prepared, he His so-called 
says, at Philadelphia by Roger Sherman before the 19th of "Connecticut 
June, and supported by the entire Connecticut delegation.* 
The author has had occasion long ago to demonstrate from the 
records that the so-called "Connecticut plan" had no exist- 
ence outside of Bancroft's imagination ; that no such plan was 
ever offered by Roger Sherman in the Convention, or sup- 
ported therein by the delegates from Connecticut. ^ Bancroft Far afield as to 
was also far afield as to the history and importance of the ^"ickney plan. 
Pinckney plan. Since his death, Professor Jameson and ex- 
Chief- Justice Nott have, in a luminous and convincing way, 
demonstrated the genuineness of the copy of that all-important 
plan furnished by Pinckney to the Secretary of State in 181 8. 
While establishing the fact that the Pinckney plan was really 
the most important before the Convention, these two special 
workers have lifted from the brilliant record of the young 
South Carolina statesman a dark cloud which has rested upon 
it most unjustly for nearly a century. In indulging in these 
criticisms the author has no desire whatever to discredit the 
work of Bancroft, which is excellent and helpful in many partic- 
ulars. His one purpose is to emphasize the fact that we are 
now only upon the threshold of the study of the history of the Study of 
American Constitution; the documents upon which that his- ^°^^"^°. 

, . ^ Constitution 

tory depends are just bemg assembled by the source-workers just begun, 
(what the Germans call Quellenstudien) , who are striving to 
extract from them their real significance. Only by that ra- 
tional and painstaking process can we hope to rescue the true 

^ He plumed himself upon his ' See the author's article, entitled 

supposed discovery of this purely "A Bancroftian Invention," in the 

imaginary plan described in his Yale Law Journal for December, 

preface (p. vi) and twice in vol. ii, 1908., 
pp. 36, 89. 



lO 



THE AMERICAN CONSTITUTION 



ICh. 



First Consti- 
tution servile 
copy of an- 
cient type 
of league. 



Drafted by 
Franklin and 
Dickinson. 



Within ten 
years great 
invention 
made. 



Absurd 
theory of 
its origin. 



account of the greatest political event in the world's history 
from the twilight of fable by which it has been too long 
obscured. 

After the completion of "The Origin and Growth of the 
English Constitution," the author took up the investigation 
of "The Origin and Growth of the American Constitution" at 
the point at which Bancroft had left it. In dealing with the dis- 

/ tinctively federal part of the system he perceived at once that 
our first Federal Constitution as embodied in the Articles of 
Confederation was simply a servile copy of that ancient type 
of a federal league whose monotonous history extends without 
material variation from the Greek confederations down to the 
rise of the Seven United Provinces of the Netherlands, whose 

i articles of association were taken as the standard for imitation. 
Franklin, who made the first draft of the Articles in 1775, and 
Dickinson the second in 1776, showed no fertility of resource 
whatever. They simply reproduced the antiquated form of a 
federal league with no federal executive, no federal judiciary, 
with all federal powers vested and confused in a one-chamber 
assembly devoid of the power to tax and devoid of jurisdiction 
over individuals, — an assembly in which every state, great 
and small, had one vote. Such was the nature of the league 
adopted by Congress in November, 1777, and recommended to 
the states. Just ten years later emerged from the Federal Con- 
vention at Philadelphia the entirely unique system, different 
in every vital particular from the first, and described by 
Tocqueville as "a great discovery in modern political science." 
Thus it is evident that, within a period of ten years, some man 
or body of men made a great discovery or invention that has 
revolutionized federal government not only in this country 
but throughout the world. Certainly in regard to the origin of 
what is perhaps the most important political invention in the" 
world's history there should be at least a theory. And yet the 
marvel is that there has been heretofore scarcely anything that 
could be called a theory. When the essence of everything said 
by the expounders, native and foreign, on the point at issue 
has been extracted the result may be formulated in this wise: 
At some time during the eighty-six working days of the Con- 
vention there was evolved through a process, probably super- 
normal, from the combined brains of eminently wise men, 



I.] INTRODUCTORY II 

called by Jefferson "an assembly of demigods," the entirely 
new creation fully armed, just as Pallas was evolved from the 
brain of Jove. In prefacing the miraculous event Bancroft in- Bancroft's 
dulges in this rhapsody: "Do nations float darkling down the "^^^P^o^y- 
stream of the ages without hope or consolation, swaying with 
every wind and ignorant whither they are drifting? or, is there 
a superior power of intelligence and love, which is moved by 
justice and shapes their course? From the ocean to the Ameri- 
can outposts nearest the Mississippi one desire prevailed for 
a closer connection, one belief that the only opportunity for its 
creation was come." ^ As a companion piece should be 
repeated here the "illustration" of that peculiar state of mind 
used by Von Hoist: "It was God's saving gift to a distracted 
and imperiled people. It was his fiat over a weltering chaos: 
'Let a nation be born in a day.'" After a twentieth-century 
mind trained in the historical school has been sickened by that 
kind of literature, whose mediaeval flavor suggests the "Faust- 
book" from which Goethe drew the supernormal parts of his 
immortal epic, the practical question recurs: Is there the Was the in- 
slightest evidence that the "great discovery," the "wholly Xrthe'ofn 
novel theory" was created or evolved after the "assembly of ventionmet? 
demigods" actually met for business? The answer is that there 
is quite a volume of clear, explicit, and detailed documentary 
evidence, collated in the appendices hereto, and absolutely 
uncontradicted in any particular, that the "great discovery" 
was not only made years before the Convention met, but that 
it w;as taken there carefully formulated in three prearranged 
^plans^" two of which were presented during the first moments 
of the first day the Convention met for real business. If the 
reader will turn to Appendix xii, he will find the Virginia ^ 

plan, with Madison's three letters, the preparation of which 
began nearly a year before the Convention met. If he will turn 
to Appendix xiii, he will find the elaborate plan or "system" 
worked out by Charles jPinckney at Charleston and described 
in his "Observations" months before his departure from that 
city. If he will look to Appendix xiv, he will find Hamilton's 
plan worked out beforehand so elaborately as a constitution 
that it might have gone into effect the next day if it had been 
adopted. When we add to these three plans, identical in all 

» Vol. ii, p. 3. 



12 



THE AMERICAN CONSTITUTION 



[Ch. 



A preposter- 
ous assump- 
tion. 



Only three 
plans taken to 
Convention. 



Plans of Madi- 
son and Pinck- 
ney instantly 
presented. 



Plans identical 
in all vital par- 
ticulars. 



vital particulars, and carefully elaborated months before the 
Convention met, the great paper of February i6, 1783, of 
which the plans were simply restatements, we have a body 
of documentary evidence setting forth "the great discovery in 
modern political science" in four distinct and dogmatic forms. 
In the face of such a mass of evidence, just as authentic as the 
Constitution itself, the theory or conceit that the great discov- 
ery was made after the Convention met is simply preposterous. 
As stated already, that purely fanciful assumption, which may 
be described generally as the *' Inspiration Theory," was the 
outcome of the half-century of mystery during which a ma- 
sonic secrecy shrouded what actually occurred within the Con- 
vention itself. 

There were only three plans of a new system of federal gov- 
ernment taken to the Convention, — the three so elaborately 
worked out by Madison, Pinckney, and Hamilton months 
before their departure for Philadelphia. If any member of the 
Convention was the author of the "new discovery," it was one 
of these three, — no kind of a claim in that regard can possibly 
be set up in favor of any other member. Thus it appears from 
the documentary evidence that the idea that the new invention 
emerged from the brains of many, in some supernormal way, 
after the Convention met, is a pure chimera distilled during 
that half-century of mystery in which the records were under 
seal. The moment the Convention was organized its first act of 
business was the formal reception of the two plans drafted by 
Madison and Pinckney, in which "the great discovery " was not 
only explicitly set forth in every vital part, but worked by the 
hand of Pinckney into what he called in presenting it "a sys- 
tem" of government. From that moment to the day of ad- 
journment, the single question before the Convention was this: 
"In what way and to what extent shall 'the great discovery' 
as embodied in the prearranged plans be so modified and 
amended as to adapt it to then existing conditions as a work- 
ing system of government?" To the attainment of that one 
mighty end the entire wisdom of the assembly was devoted 
from May 29, the day upon which the plans were presented, 
to September 17, the day of adjournment. 

An inspection of the three prearranged plans, drafted so 
carefully by Madison, Pinckney, and Hamilton, and printed 



I.] INTRODUCTORY 1 3 

side by side in the appendices, will reveal the fact that each one 
embodied in its own way every element of "the great inven- 
tion," which consisted of *a proposal (i) of a federal govern- 
ment with the independent power to tax; (2) of a federal gov- 
ernment divided into three departments, legislative, executive, 
and judicial; (3) of a federal legislature with two chambers; 
(4) of a supreme federal judiciary; (5) of a federal government 
operating not on states as corporations, but directly on indi- 
viduals. Down to the time of the drafting of the Articles of 
Confederation, into which no one of those principles entered, 
had any one ever heard of a federal government blessed by 
the presence of any one of them? Before the Federal Convention 
of 1787 met, "the great discovery in modern political science" 
had certainly been made by somebody, because we find it 
worked out in great detail in the three prearranged plans taken 
by Madison, Pinckney, and Hamilton to the Convention as the 
basis of its action. As the evidence is all documentary, there is 
no room for cavil or question on that point. So the single ques- Were they 
tion to be answered — a question the author was the first to ^""^^^ ^""^^ 

, , .a common 

propound — is this : Were the three prearranged plans, identi- source ? 
cal in every vital particular, drawn from a common source, or 
were the authors of them, working in isolation and far apart, 
inspired, at or about the same moment, to make an identical 
invention for which the world had been waiting for centuries? 
If they were so inspired, the old "Inspiration Theory" must^ 
be put to a more severe test than that to which it was origin- 
ally subjected. Fortunately at this point the need of super- 
normal aid is greatly lessened by the fact that neither Madison, 
Pinckney, nor Hamilton, and, so far as the author knows, no 
biographer in their behalf, ever claimed that any one of them 
was the author of "the great invention." If any one of them 
had ever claimed such authorship, it would have put him at 
once at the throats of the other two, a conflict that never 
existed. 

On February 16, 1783, Pelatiah Webster — a great poHt- Epoch-making 
ical economist and retired financier, the Adam Smith of that p^jj j^j^ j»g, 
epoch, a graduate of Yale, a patriot in the Revolutionary 
cause, then a mature thinker of fifty-seven, better equipped per- 
haps than any other man in the country to deal with the vital 
question of taxation involved — published at Philadelphia, at 



14 



THE AMERICAN CONSTITUTION 



[Ch. 



Madison's 
testiuiiyvy. 



Imperfect 
records oi 
votes and 
debates. 



the very doors of the Continental Congress, in a pamphlet of 
forty-seven pages, "the great discovery in modern political 
science," which was carried to the Federal Convention of 1787 
in the three plans prepared by Madison, Pinckney, and Ham- 
ilton. At the moment that publication was made, Madison 
and Hamilton, then young men of thirty-two and twenty-six 
respecti\ely, were in Philadelphia as members of the Congress 
in which Charles Pinckney, then twenty-live, took his seat soon 
afterwards. Even when the three plans drafted by Madison, 
Pinckney, and Hamilton are taken as one document, they pre- 
sent the great discovery in much less detail than the original in 
which it was proclaimed. After the adjournment of the Fed- 
eral Convention, Webster republished his paper with copious 
notes, restating his claims and appealing to posterity for 
justice. As Madison frankly states, Pelatiah Webster was the 
first to propose, as early as 1781, in one of his financial essays, 
published at Philadelphia in May of that year, the calling of 
*' a Continental CouNcntion " ^ for the making of an entirely new 
Constitution. Whether any direct reference was made to that 
proposal, or to the contents of the great paper of February 16, 
1783, during the prolonged debates that took place in the secret 
conclave of 1787, we can never know, as reporters from with- 
out were excluded, and reporters that worked within have 
preserved only partial and inaccurate statements of what was 
actually said and done. The most careful student of the 
records declares that we do not know for certain even what 
votes were taken on particular questions. To use his own 
words: " In view of these mistakes, and because of the suspicion 
that would rest upon notes so carelessly kept as were the 
minutes of the secretary, the printed 'Journal* cannot be 
relied on. The statement of questions in the great majority 
of cases is probably accurate, but the determination of those 
questions, and in particular the votes upon them, require con- 
firmation or can be accepted only tentatively." * The frag- 
mentary reports of the speeches that sur\4ve are vastly less 
complete and reliable of course than the Journal itself. When 
in 1821 Yates printed his notes in full, Madison pronounced the 
document to be "not only a very mutilated but a very errone- 

* Mtdis^m P^p^rs, ii, 706-7. ' Max Farrand. Records of the 

Federai Conv^ttticm, 49-50. 



M INTRODUCTORY 1 5 

ous edition of the matter to which it relates";^ and J. C. 
Hamilton warns us that Madison's report of his father's great 
speech delivered on June 18 is only a very imperfect frag- 
ment." Madison has preserved only about three thousand 
words of a speech that occupied more than five hours in its 
delivery. If we possessed the full text of that elaborate ex- 
position, reviewing no doubt the entire subject, we might find 
frequent references by Alexander Hamilton to the work of 
Pelatiah Webster, with whom he was in official contact as Full text might 
a member of the Continental Congress at the very moment disclose fre- 

f 11 fT^i ^r. 11-11 1 quent reference 

when the document of February 16, 1783, was published at the to Webster. 
very doors of that body. Whether any direct reference was 
made during the four months of debate to that document is, j 
however, of no special significance, as such reference could 
neither increase nor decrease its authenticity and its import- 
ance. It is sufficient for us to know that when the three 
restatements of its contents, as prepared by Madison, Pinck- 
ney, and Hamilton, are placed in juxtaposition with it, the 
problem involved in the authorship of the plans is solved with 
the precision of a mathematical demonstration. 

The author was the first to work out that problem simply only a vacuum 
because he was the first to undertake it. It really involved no ^^ ^^ ^'^^<^- 
great amount either of study or research ; there was really no 
opposing theory, worthy of the name, to overthrow, — it was 
simply a question of filling a vacuum, of removing a set of 
misty legends which were no credit to our historical scholar- 
ship. No great subject was ever so shamefully neglected. 
Some aid may have been derived by the author from long 
study of the processes through which Kemble, Palgrave, 
Stubbs, and Freeman have, in recent years, extricated from 
the jungle of fable the beginnings of English constitutional 
history. That work was never undertaken in earnest until 1839, 
when Kemble began the publication of his "Codex Diplomati- 
cus," whereby "upwards of fourteen hundred documents, con- 
taining the grants of kings and bishops, the settlements of 
private persons, the conventions of landlords and tenants, the 
technical forms of judicial proceedings, have been placed in our 
hands." Such inquiries all turn upon a critical examination of 

' » Doc. Hist, of the Constitution, v, * Life of Alexander Hamilton, ii, 

308-312. 489-490. 



i6 



THE AMERICAN CONSTITUTION 



[Ch. 



"HUtory ta 
itiidieil from 
ilucumentH." 



Work of the 

iDtiatrr 

liuiUlc^rit. 



Ne«*i\ no fame 
that liflonija 
to auothei. 



documents. To repeat the words of Langlois: "History is 
studied from documents. Documents are the traces which 
have been left by the thouRhts and actions of men of former 
times. . . . 'l'hert'isi\()siil)8ti(ute for (li)tuincnts; no documents, 
no history."* Willi the richest accumulation of historical 
records in all Europe — "whether we consider them in relation 
to aiiti(iuily, to continuity, to variety, to extent, or to ampli- 
tude of facts and details"* — mouldering beneath their feet, 
English historical scholars permitted the beginnings of the 
English Constitution to remain a sealed book down to a time 
within the memory of men still living. And so we have per- 
mitted the beginnings of the American Constitution to remain 
a sealeil book, with the "Inspiration Theory" as its clasp, 
despite the fact that the clearest and most formal of all docu- 
mentary evidence as to the truth was easily accessible. 

The author desires here to repeat the statement made in the 
preface that the inlluence of the great document of February 
l6, 1783, does not extend beyond the work of the Federal 
Convention of 1787, — except in one important particular it 
sheds no new light on the after history. He also desires to 
anticipate here this statement: "And yet after all has been 
said, the fact remains that the master builders, who trans- 
formed imder the most ditVicult circumstances possible the 
dream of the great architect into a working system of govern- 
ment, achieved a result just as remarkable as the invention 
itaelf. The phili>sophers, statesmen, jurists, warriors, experi- 
enced men of affairs, who comjjosed the august assembly 
that wrought at Philadelphia in 1787, may be compared, as 
to genius and learning, with the master spirits of any age 
. . . they need no fame that beltnigs to another." While the 
epoch-making achievement of Pelatiah Webster must forever 
stanil forth as a beacon light in the world's political history, 
so far as this \^ook is iiM\eerned, it is a mere episode, simply 



* "L'histiMtv se trtit avtv iJes 
documents. Les (liKMimeuts sont lea 
tract^a qii'out laiaseea lea pensees et 
lea actes dea hiMnniea d'autrt^fola. 
. . . Car rlen ne aupidfe aiix docu- 
menta ; p**** ^^'^ ilvvuiuenta, jxia 
d'histoire." Intri\luition um.v etuilifs 
historiiiutfs, jvu Ch.-V. Lungloia — 



Ch. Soignol>os, jd ed., p. i, Paris. 
* The wortla of Sir Francia Pal- 
gra\e, under whose auspices aa de- 
puty ket^per the puMie itvorda were, 
in 1858. finally brought to^ijether 
under the rvH)f of the present Rword 
ReiX)aitory. 



I.l INTRODUCTORY 1 7 

one link in a long chain of causation. The publication and dis- 
tribution by Congress of the great document, with the author's 
commentary upon it, has done much already to remove false 
impressions of long standing. And yet there is still here and 
there an ancient jurist or statesman, whose mind has ceased to 
be receptive of new facts, who resents any attempt to disturb 
the illusions of his earlier years. Pelatiah Webster's alma 
mater, the University of Yale, still treats with scornful silence 
the fame of her immortal son. In all this there is nothing out 
of the usual course. The achievements of contemplative men, 
especially when they are far-reaching, have often had to wait 
for a long time for full recognition. Not until after the lapse 
of two hundred years was it admitted that Velasquez was 
one of the mightiest painters the world had ever known; it 
was quite as long perhaps before Shakespeare, as a world- 
poet, was permitted to enter into the full possession of his 
kingdom. 



CHAPTER II 



THE GREAT DISCOVERY IN MODERN POLITICAL SCIENCE 



Evolution and 
conscious crea- 
tion contrasted. 



Why the 

states should 
be first stud- 
ied. 



Taney's defini- 
tion of state 
sovereignty. 



After a thousand years of persistent development in an 
island world the dominant state in Britain known as England 
reproduced itself in each of the thirteen colonial common- 
wealths out of whose union arose the Federal Republic of the 
United States. Just as these preexisting commonwealths were 
the natural products of a political evolution, so the Federal 
Union into which they finally entered is an artificial and 
entirely novel creation without a precedent in history. Mr. 
Gladstone graphically, perhaps unconsciously, portrayed the 
basic difference in origin between the two systems, state and 
federal, when, in a well-worn phrase, he said: "As the British 
Constitution is the most subtile organism which has proceeded 
from progressive history, so the American Constitution is the 
most wonderful work ever struck off at a given time by 
the brain and purpose of man." 

Tocqueville was wise when he said that "To examine the 
union before we have studied the states would be to adopt 
a method filled with obstacles. . . . The great political prin- 
ciples which now govern American society undoubtedly took 
their growth in the state." ^ The political substructure of 
every American state is that "subtile organism which has pro- 
ceeded from progressive history," properly described not as the 
British but as the English Constitution, because it is the con- 
stitution of that single state in Britain known as England 
which has reproduced itself in a somewhat modified form in 
the constitution of every state, old and new, of the American 
Union. When the tie of political dependence that bound the 
colonies to the mother country was severed, the English pro- 
vinces in America rose to the full stature of sovereign states. 
As Chief Justice Taney has expressed it: "When the Revolu- 
tion took place, the people of each state became themselves 
sovereign " ; and so soon as they "took into their own hands the 
* Democracy in America (Bowen's ed.), i, 73, 74. 



II.] GREAT DISCOVERY IN MODERN POLITICAL SCIENCE 19 

powers of sovereignty, the prerogatives and regalities which 
before belonged either to the Crown or the Parliament, became 
immediately and rightfully vested in the state." ^ Thus every 
student of the American Constitution is forced to begin with an 
inquiry into the origin and growth of the Constitution of that 
state in Britain we call England whose foundations were laid by 
the Teutonic invaders who, between the middle of the fifth cen- 
tury and the end of the sixth, built up in Britain "a Germany 
outside of Germany." ^ Out of the Teutonic settlements thus 
made finally arose the consolidated Kingdom of England Consolidated 
which represents an aggregation of shires ; the shire an aggre- g^^^^ 
gation of hundreds ; the hundreds an aggregation of townships. 
Upon the substructure thus made up of local, self-governing 
communities the English political system has ever depended 
for its permanency, its elasticity, its enduring power. In every 
one of these communities the idea of local self-government was 
intensely developed, and in each were embedded the germs of 
the representative system. And from the tendency, conscious 
or unconscious, upon the part of Englishmen to reproduce 
these self-governing communities in other lands has resulted 
the ascendancy and power of the English nation as a colonizing 
nation. 

When the offspring is compared with the parent, when the Offspring 
English state in America is compared with the English state ^^^n^ent 
in Britain, the resemblance is too close for the relationship to 
escape the most careless observer. In both, the political sub- 
structure is the same — the ancient Teutonic system of local, 
self-governing communities composed of the township, the 
hundred, and the shire. In each, municipal organization rests 
upon substantially the same foundation. So far as central 
organization is concerned, every American state is a mere 
reproduction of the central organization of the English king- 
dom with such modifications as have resulted, in a widely dif- 
ferent physical environment, from the abolition of nobility, 
feudality, and kingship. In the new as in the old, the central 
powers of the state are divided into three departments, — legis- 
lative, executive, and judicial, — which, in the same qualified 
sense, are separate and distinct from each other. 

1 Martin et al. v. The Lessee of * Taine, Hist, of Eng. Literature, 

^Vaddell, 16 Peters, 410, 416. i, 50. 



20 



THE AMERICAN CONSTITUTION 



[Ch. 



Sources of 
American 
federal ideas. 



Requisition 
system. 



Our first 
Federal Con- 
stitution. 



When the time came for the English states in America to 
construct a federal union on a priori principles, it was impos- 
sible to derive any aid whatever from the home land, for the 
simple and conclusive reason that the mother kingdom was a 
consolidated and not a federal state. The founders of American 
federalism were thus driven to explore, with dim lights as com- 
pared with our own, the histories of such federal unions as had 
existed in Greece, and such as had grown up between the Low- 
Dutch communities at the mouth of the Rhine, and between 
the High-Dutch communities in the mountains of Switzerland 
and upon the plains of Germany. The meagreness of their 
knowledge as to Greek federalism is frankly confessed by both 
Madison and Hamilton, who, in speaking of the Achaian 
League, declare in the "Federalist" that, "could its interior 
structure and regular operation be ascertained, it is probable 
that more light would be thrown by it on the science of federal 
government than by any like experiment with which we are 
acquainted."^ Thefactis that the only federal unions with whose 
internal organizations the builders of our Federal Republic were 
really familiar, and whose histories had any practical effect on 
their work, were the Confederation of Swiss Cantons, the Seven 
United Provinces of the Netherlands, and the Germanic Con- 
federation. The fundamental principle upon which all such 
fabrics rested was the requisition system, under which the fed- 
eral head was simply endowed with the power, vested in a one- 
chamber assembly, to make requisitions for men and money 
upon the states or cities composing the league for federal pur- 
poses; while such states or cities, retaining the entire taxing 
power, alone possessed the authority to enforce them. Prior 
to the making of our second Federal Constitution of 1787 the 

I modern world had never conceived of the idea of a federal union 
armed with the power to levy taxes in any form whatever. The 

j first attempt made by the English states in America to con- 
struct a federal union was embodied in the first Constitution, 
known as the Articles of Confederation. Down to that point 
nothing new was achieved ; the fruit of the first effort was sim- 

^ No. 18, Examples of Greek Con- vations sur I'histoire de Gr^ce, to 

federacies, is attributed to Hamilton which the writers of that day seem 

and Madison. See Ford's Federalist, to have been chiefly indebted for 

108, 112. Reference is made to the such very imperfect knowledge as 

work of the Abbe Mably, Obser- they possessed of Greek federalism. 



II.] GREAT DISCOVERY IN MODERN POLITICAL SCIENCE 21 

ply a confederation on the old plan, with the entire federal 
power vested and confused in a one-chamber assembly, which 
could only deal, through the requisition system with the states, 
which retained the entire taxing power. In their first effort 
American statesmen exhibited no fertility of resource whatever 
in the making of a federal constitution. Federalism, which as 
a system of government already stood low enough in the estima- 
tion of mankind, gained nothing from an experiment that gave 
way in the storm and stress of a seven years' war. At its close 
the personality of Washington was called upon to supply the 
unity and cohesion our first Federal Constitution failed to 
afford. As Luzerne wrote of him to Vergennes, at a little later 
time, "More is hoped from the consideration of a single citizen 
than from the authority of the sovereign body."'i 

The original draft of the Articles of Confederation, made as Ovir second 
early as the 21st of July, 1775, by Dr. Franklin and preserved ftj^ttdon^°° 
in his handwriting, 2 is conclusive documentary evidence of the 
fact that, down to that time, even the most fertile and ingen- 
ious mind of the epoch had conceived of no advance upon the 
ancient type of federal government as it had existed for at least 
twenty-five hundred years. Certainly at the time of the mak- 
ing of our first Federal Constitution neither Franklin nor any 
other American statesman had conceived of a federal systertL. 
armed^with the power to tax. Twelve years later, upon the 
adjournment of the Federal Convention, September 17, 1787, 
the world w*as called upon to inspect an entirely new system, 
whose cornerstone was the independent power of taxation, 
coupled with machinery adequate for the enforcement of all its 
mandates. In the words of Tocqueville, the second Constitution 
was based '' upon a wholly novel theory which may be consid- "Tlie wholly 
ered a great discovery in modern political science." ^ When the ^°^^^ theory." 
masses of the American people had the opportunity to feel the 
practical benefits wrought in their political condition by the 

^ August 4, 1783. Printed in the lin to Congress on July 21, 1775, 

Appendix to Bancroft's Hist, of the "though not copied into their Jour- 

Const., i, 325, 326. nals, remaining on their files in his 

2 See Secret Journals of Congress handwriting." 

{Domestic Affairs) 21st July, 1775, * Cette constitution . . . repose 

i, 283; Madison Papers (Gilpin ed., eneffet surune theorie entierement 

1841), ii, 688. (Only the Gilpin edi- nouvelle, et qui doit marquer comme 

tion will be cited.) Madison says une grande decouverte dans la sci- 

that the plan submitted by Frank- ence politique de nos jours." 



22 



THE AMERICAN CONSTITUTION 



[Ch. 



Common basis 
of three prear- 
ranged plans. 



Madison and 
the Virginia 
plan. 



new system, they became imbued with a sense of intense admi- 
ration ; they put it upon a pedestal and made it a popular idol ; 
as a German historian ^ has expressed it, the new Constitution 
soon passed through a process of canonization. In the light 
of these facts it is certainly a marvel that neither at the time of 
the invention, nor for a century thereafter, was there any real 
curiosity manifested as to the authorship of this "wholly novel 
theory" by which federalism as a system of government was 
suddenly transformed. If anything that may be called a 
theory ever existed on the subject it was nothing more definite 
than a vague and general assumption that, at some time during 
the eighty-six days the Convention was actually at work, the 
great invention silently, perhaps miraculously, arose out of the 
three plans to whose consideration the debates were confined. 
But that theory, if such it may be called, goes to wreck the 
moment it is confronted by the incontestable fact that each of 
the plans in which the "wholly novel theory" was embodied 
had been carefully worked out and cast in finished literary 
form months before the Convention met. There were but 
four plans presented. That of Virginia, undoubtedly drafted 
by Madison; that of Charles Pinckney; that of Hamilton; and 
that of New Jersey drafted by Paterson, which may be en- 
tirely ignored, as it only proposed a revision of the Articles of 
Confederation. The two first named, by far the most import- 
ant, were presented during the morning hour of May 29, 
the day on which the business of the Convention actually 
began, — with the presentation of the plans of Virginia and 
Charles Pinckney the proceedings were opened. ^ We know 
that for at least a year beforehand Madison was hard at work 
on the Virginia plan.^ In December, 1786, we find him in 
active correspondence with Jefferson, then at Paris, as to the 
structure of that plan,* presented to the Convention by Gov- 

son suggested that, "to enable the 
federal head to exercise the pow- 
ers given to the best advantage, it 
should be organized, as the particular 
ones are, into legislative, executive, 
and judiciary." Pelatiah Webster 
had worked out that problem in 
great detail in his paper of Feb. 
16, 1783. It was therefore an old 
story in 1786. 



1 Von Hoist, i, 64-70. 

* Madison Papers, ii, 728-735. 

' Cf. "Preparations of Madison 
for Labors of Federal Convention," 
Rives, Life and Tim£.s of Madison, 
ii, 208. 

* Cf. Letter of Jefferson to Madi- 
son, Dec. 16, 1786, in Jefferson's 
Correspondence, by T. J. Randolph, 
ii, 64, 65. In that letter Jeffer- 



II.] GREAT DISCOVERY IN MODERN POLITICAL SCIENCE 2^ 

ernor Randolph, whose official dignity could give to it a weight 
Madison's thirty-six years could not. At the close of Ran- 
dolph's presentation of the Virginia plan, Charles Pinckney, 
then only twenty-nine, presented his plan. The event is thus 
recorded in the Minutes of Yates : " Mr. C. Pinckney, a member Pinckney's 
from South Carolina, then added that he had reduced his ideas "system." 
of a new government to a system, which he then read." From 
Pinckney's latest and ablest advocate, who claims that he 
"alone formulated a constitution before the Convention met," 
we learn of the painstaking care with which his "system" had 
been elaborated beforehand. Judge Nott tells us that "in a 
paper which will be called briefly ' The Observations,' written by 
Pinckney before he left Charleston, he sets forth at length a 
description of his plan of government," a task which he had, for 
some time in advance, "resolutely assigned to himself." ^ It is 
equally certain that Hamilton, then only thirty years of age, 
had, with even greater care, elaborated his plan beforehand. 
From his " Life " by his son we learn that "In the course of his 
speech (which occupied five hours) he read his plan of govern- 
ment, not the propositions which are found in the printed Jour- 
nal, but *a full plan, so prepared that it might have gone into Hamilton's 
immediate effect if it had been adopted.' This plan consisted "^^ p^^'' 
of ten articles, each article being divided into sections." ^ The 
" full plan," to repeat the words of Mr. Lodge, "does not seem 
to have been formally introduced in the Convention, but was 
handed to Madison, who made a copy of it." ^ Only when 
Hamilton's entire plan as embodied in the two papers, equally 
authentic, has been examined as a whole, is it possible to under- 
stand how elaborately and deliberately he prearranged the 
scheme of federal government he took with him to Philadel- 
phia. Thus we know for certain that the "wholly novel the- 
ory," as Tocqueville has labeled the great invention, passed 
into the Convention from the three prearranged plans drafted 

^ Cf . The Mystery of the Pinckney Hamilton handed to him his larger 

Draught, by ex-Chief Justice C. C. plan. Madison Papers, iii, appen- 

Nott (1908), 90, 189, 249, 332. dix no. 5, xvi. After making a copy 

* Life of Alexander Hamilton, by of it, he returned it to Hamilton. It 
John C. Hamilton, ii, 490-491. is hard to understand why Madison 

* The "full plan" is printed in did not preserve a copy of the 
The Works of Alexander Hamilton, precious Pinckney plan, not so long 
Lodge ed., i, 350-369. See also 347 as Hamilton's. 

for editor's note. Madison says 



24 



THE AMERICAN CONSTITUTION 



[Ch. 



From what 
common source 
were the plans 
derived ? 



Pelatiah Web- 
ster's paper of 
Feb. i6, 1783. 



by Madison, Pinckney, and Hamilton, each of whom, while 
working in "the unvexed silence of a student's cell," made it 
the bed-rock of his performance. Into each of the three plans 
the five cardinal principles that constitute the invention enter 
as indispensable elements. The documents make it perfectly 
clear that the three draftsmen appropriated the "wholly novel 
tlieory " as common property, and as such made it the basis of 
their work. The assumption that a set of new ideas so start- 
ling, so complicated as those that constitute the great invention, 
should have been revealed almost at the same moment to three 
minds working in isolation, and far removed from each other, 
involves a miracle far more difficult of belief than that which 
tells us of the turning of water into wine. 

Knowing, as the older historians should have known, that, in 
this as in every other case, the work of the Convention was 
cut out beforehand and formulated in the three prearranged 
"plans" or "systems," it is passing strange that no one of 
them ever took the pains to ask and answer the simple and 
inevitable question — From what common source did the drafts- 
men of the prearranged plans draw the ^^ wholly novel theory ,' the 
path-breaking idea, which was the basis of all of them? That 
simple and inevitable question was never answered until a few 
years ago, when the author reprinted, with a commentary, the 
epoch-making paper published by Pelatiah Webster at Phil- 
adelphia, February 16, 1783, and there republished with notes 
in 1791, in which he announced to the world, as his invention, 
the entire plan of the existing Constitution of the United States, 
worked out in detail more than four years before the Federal 
Convention of 1787 met. That paper, entitled " A Dissertation 
on the Political Union and Constitution of the Thirteen 
United States of North America," whose lightest words are 
weighty, is just as authentic as the Constitution itself, and 
far more elaborate. Two editions of it, with the author's com- 
mentary, have been published by Congress. When it was thus 
reprinted, after an interval of one hundred and sixteen years, 
its contents were as unknown to the leading jurists and states- 
men of this generation as if it had been a papyrus from Egypt 
or Herculaneum.^ Reluctantly and ungraciously as its precious 
revelation has been received by many, it has swept away once 
* Many letters in the author's hands attest that fact. 



II.] GREAT DISCOVERY IN MODERN POLITICAL SCIENCE 25 

and forever the impossible theory that the most elaborate and 
unique of all political inventions had no personal inventor, and 
the still more impossible assumption that three minds, working 
in isolation and far removed from each other, should have con- 
ceived, almost at the same moment, the "wholly novel theory" 
of federal government for which the world had been waiting for 
centuries. The history of no invention has ever been pre- 
served in a more detailed, scientific, or authentic form than 
that announced to the world, as such, in the now famous docu- 
ment of February 16, 1783. Taine has said that "under every 
shell there was an animal, and behind every document there 
was a man." ^ Behind the document in question there was a man 
whose fame is destined to grow until it becomes greater than 
that of any other contributor to "modern political science." 

In the evolution of constitutions things do not happen in a How commerce 
miraculous way, — through it all there runs the force of causa- <^o™p«1s umty 
tion working along natural and practical lines. It was the 
mercantile element in the German cities that eventually 
crushed the spirit of feudalism ; it was the mercantile element 
that opened the way for the Imperial Code by first creating 
a uniform system of commercial law. The first modern effort 
to give unity to law in Germany was made, as a prelude to the 
movement for national unity, by the general Bills of Exchange 
Law {Wechselordnung, 1848-50), while the general Commercial 
Code (Gemeines Handelsgesetzbuch) , enacted in various states 
between 1862 and 1866, was reenacted for the new empire in 
1871.^ Just as the influence of commerce set in motion the 
forces that finally brought about the unity of law in Germany, 
so the influence of commerce set in motion the forces that 
finally compelled the invention of the existing Constitution of 
the United States. The first step was taken in January, 1786, 
when Virginia issued a call for a convention of states to meet at 
Annapolis, to "take into consideration the trade of the United Annapolis 
States; to examine the relative situations and trade of said o^^enuon. 
states ; to consider how far a uniform system in their commercial 
regulations may be necessary to their common interest and 
their permanent harmony."' When Maryland prompted Vir- 

^ Ta.me,History of English Liter a- * Cf. Bryce, Studies in History 

ture, i, I. and Jurisprudence, 777,778. 

• Madison Papers, ii, 69. 



26 



THE AMERICAN CONSTITUTION 



[Ch. 



Address pre- 
pared by 
Hamilton. 



Federal Con- 
vention first 
proposed by 
Webster in 
1 781. 



ginia to take that step, by proposing that commissioners from 
all the states should meet and regulate the restrictions on com- 
merce for the whole, the advantages of "a politico-commercial 
commission" for the continent were foreseen. It was New 
Jersey that gave a wider purpose to this trade convention by 
authorizing her commissioners "to consider how far a uniform 
system in their commercial regulations, and other important 
matters, might be necessary to the common interest and per- 
manent harmony of the several states ; and to report such an 
act on the subject as, when ratified by them, would enable the 
United States in Congress assembled effectually to provide for 
the exigencies of the Union." ^ Therefore in the address of the 
Annapolis Convention, drafted by Hamilton, it was said: 
"Your commissioners submit an opinion, that the idea of ex- 
tending the powers of their deputies to other objects than those 
of commerce, which has been adopted by the State of New 
Jersey, was an improvement on the original plan, and will 
deserve to be incorporated with that of a future convention. 
They are the most naturally led to this conclusion, as, in the 
course of their reflections on the subject, they have been induced 
to think that the power of regulating trade is of such compre- 
hensive extent, and will enter so far into the general system of 
the federal government, that to give it efificacy and to obviate 
questions and doubts concerning its precise nature and limits, 
may require a corresponding adjustment of other parts of the 
federal system." ^ As all the world knows, the one outcome of 
the Annapolis Convention was the call for a convention^ "to 
meet at Philadelphia on the second Monday of the next May 
(1787), to consider the situation of the United States, and 
devise such further provisions as should appear necessary to 
render the Constitution of the Federal Government adequate 
to the exigencies of the Union; and to report to Congress 
such an act as, when agreed to by them and confirmed by 
the legislatures of every state, would effectually provide 
for the same." ' 

Madison has thus recorded the fact that^^^c years before that 
time, Pelatiah Webster had proposed the calling of such a con- 
vention: " In a pamphlet published in May, 1781, at the seat of 



^ Elliot, i, 117, 118. 

' Madison Papers, ii, 700, 701. 



' Elliot, i, 1 17-120. 



11.] GREAT DISCOVERY IN MODERN POLITICAL SCIENCE 27 

Congress, Pelatiah Webster, an able though not conspicuous cit- 
izen, after discussing the fiscal system of the United States, and 
suggesting, among other remedial provisions, one including a 
national bank," was the first to indicate "the necessity of their 
calling a Continental Convention for the express purpose of ascer- 
taining, defining, enlarging, and limiting, the duties and powers 
of their Constitution." ^ In the notes to his great paper of Feb- 
ruary 16, 1783, Webster tells us in express terms that from the 
outset he "was fully of opinion (though the sentiment at that 
time would not very well bear) that it would be ten times easier 
to form a new Constitution than to mend the old one." 

This daring innovator, who was the first to understand ;> »o^^*^ » 
the necessity of an entirely new federal fabric, was born at ' -^t, 
Lebanon, Connecticut, in 1726, and graduated at Yale College o a- A i^ 
in 1746. In 1755 he moved to Philadelphia, where he became j^Jbs'^ 
a prosperous merchant, meeting with such success as to earn 
ample leisure for study and writing. During the British oc- 
cupation of the city in February, 1778, on account of his 
ardor in the patriot cause, he was arrested at night, probably 
by order of General Howe, and closely confined in the city 
prison for over four months, a large part of his property 
being confiscated to the King's stores. As early as October, 
1776, he had begun to write on the currency, strenuously 
urging upon Congress the levying of a tax to provide means 
to raise the debt incurred by the heavy issuance of the 
bills of credit commonly known as "Continental Currency." 
Three years later he began the publication of the famous series 
of "Essays on Free Trade and Finance," of which seven num- His essays on 
bers were issued in 1785. In the next year appeared "An Essay g^'^^ ^°^ 
on Credit. Reasons for Repealing the Act of the Legislature, 

^ Madison Papers, ii, 706, 707. croft's inference is based on flimsy 

No attention should be paid to Ban- ^hearsay nearly a century after the 

croft's vain attempt to discredit event. Bancroft never grasped the 

Madison's statement. History of importance of Webster's work, AI- 

the Constitution, i, 24, note 3. Apart exander Johnston, in his American 

from Madison's great accuracy and Political History, 70, says: " In May, 

Bancroft's well-known inaccuracy 1 781, the first public proposal of 

stands the fact that the call of this means of revisal ["by a con- 

178 1 was a natural part of Pela- vention of all the states "] was made 

tiah Webster's initiative as now by Pelatiah Webster in a pam- 

understood. Madison was on the phlet." 
ground and knew the facts; Ban- 



28 



THE AMERICAN CONSTITUTION 



ICh. 



His contact 
with Congress. 



His fitness to 
deal with the 
problem of 
problems. 



Revoking the Charter of the Bank of North America." Finally, 
in 1791, he repubUshed his various papers in a work entitled 
"Political Essays on the Nature and Operation of Money, 
Public Finances, and other Subjects PubHshed during the 
American War, and Continued up to the Present Year." ^ That 
volume, which displays a marvelous mastery of the subject to 
which it is devoted, continues as the leading authority upon 
the finances of that period. In weighing Madison's statement 
that Pelatiah Webster, though an able was not a "conspicu- 
ous" citizen, we must take into account not only the extent 
and importance of his intellectual work, but also the fact that, 
as a political economist, he was consulted by Congress as to the 
resources of the country. Another evidence of his position as 
a public man is to be found in the fact that when in July, 1782, 
a petition was to be presented to Congress in behalf of "the 
deranged officers of the lines of Massachusetts and Connecti- 
cut," he, a native of the state last named, was appealed to for 
^is influence. In a petition drawn in the noblest style, and 
signed "Pelatiah Webster, William Judd," he presented the 
case, which was finally referred to a special committee com- 
posed of Mr. Peters, Mr. Hamilton, and Mr. Dyer. The report,^ 
which survives in the handwriting of Alexander Hamilton, is 
dated March 6, 1783, just eighteen days after the publication 
of the great paper of February 16 of that year. Thus the fact 
is fixed that as a public man Webster was as well known to 
Hamilton as he was to Madison. 

This successful merchant, ardent patriot, trained financier, 
and recognized expounder of the science of political economy, 
was better equipped perhaps than any man of his time to deal 
with the problem of problems which then so sharply con- 
fronted the country. As he viewed it, that problem was in its 
essence financial and commercial. Approaching it on its finan- 
cial side, he set for himself the task of constructing an entirely 



* The second edition of 1791 was 
"Printed and sold by Joseph 
Crukshank. No. 91 High Street," 
Philadelphia. 

* It begins: "The Committee to 
whom was committed the report of 
the Grand Committee on the me- 
morial of Pelatiah Webster and Wil- 
liam Judd in behalf of the deranged 



officers of the lines of Massachusetts 
and Connecticut submit the follow- 
ing resolution," which was one of 
approval. MS. Records of the Coti' 
tinental Congress, no. 19, vol. 6, 
folios 489-493. It is sad indeed that 
Congress has not yet provided for 
the printing of these records. 



II.l GREAT DISCOVERY IN MODERN POLITICAL SCIENCE 



29 



Supremacy 
of federal law 
a corollary. 



new federal fabric to be endowed, for the first time in the world's 
history, with the independent power of taxation. To use his 
own words: "I begin with my first and great principle, viz.: inventor 
That the Constitution must vest powers in every department °^ federal 
sufficient to secure and make effectual the ends of it. . , .They 
must therefore of necessity be vested with the power of taxation. 
I know this is a most important and weighty truth, a dreadful 
engine of oppression, tyranny, and injury when ill used; yet, 
from the necessity of the case, it must be admitted. . . . To 
make all these payments dependent on the votes of thirteen 
popular assemblies ... is absurd. This tax can be laid by 
the supreme authority much more conveniently than by the 
particular assemblies, and would in no case be subject to their 
repeal or modifications." In that fundamental concept was 
embodied the path-breaking idea {bahnbrechende Idee) that 
wrought the revolution. From the conception of a federal gov- 
ernment with independent taxing power resulted, as an in- 
evitable corollary, the idea of a strictly organized government, 
armed with the power to execute its own mandates. With a 
lucidity and terseness never exceeded by Marshall in restating 
his formulas, Webster said: "No laws of any state whatever, 
which do not carry in them a force which extends to their 
effectual and final execution, can afford a certain or sufficient 
security to the subject : this is too plain to need any proof. Laws 
or ordinances of any kind (especially of august bodies of high 
dignity and consequence) which fail of execution are much 
worse than none; they weaken the government; expose it to 
contempt; destroy the confidence of all men, natives and for- 
eigners, in it." In order to endow his unique federal creation 
with the power thus to execute its own laws, he proposes that 
it should be divided, as the state governments are, into three 
departments, executive, legislative, and judicial, the organiza- 
tion of each of which he worked out in great detail. Thus for 
the first time in history, the great architect proposed (i) a fed- 
eral government with the independent power of taxation; 
(2) the division of the federal head into three departments, 
legislative, executive, and judicial; (3) the division of the fed- 
eral legislature into two chambers; (4) a federal government 
with delegated powers, the residuum of power remaining in the 
states. The fourth proposition Webster stated in this remark- 



His four novel 
and basic 
principles. 



30 THE AMERICAN CONSTITUTION [Ch. 

ably ample and explicit form as an anticipation of the Tenth 
Amendment, which provides that "the powers not delegated 
to the United States by the Constitution, nor prohibited by it 
to the states, are reserved to the states respectively or to the 
people." "I propose further," said Webster, "that the powers 
of Congress, and all the other departments, acting under them, 
shall all be restricted to such matters only of general necessity 
and utility to all the states, as cannot come within the juris- 
diction of any particular state, or to which the authority of any 
particular state is not competent : so that each particular state 
shall enjoy all the sovereignty and supreme authority to all in- 
tents and purposes, excepting only those high authorities and 
powers by them delegated to Congress, for the purposes of the 
general Union." The discovery of these four basic principles, 
of which the world had never heard before, wrought a revolu- 
tion whose essence is embodied in the fact that the new crea- 
tion, partly federal and partly national, operates directly on 
the citizen and not on the states as corporations. As Tocque- 
ville has expressed it: "Here the term federal government is 
clearly no longer applicable to a state of things which must 
be styled an incomplete national government {un gouvernement 
national incomplet) : a form of government has been found out 
which is neither exactly national nor federal; but no further 
progress has been made, and the new word which will one day 
designate this novel invention does not exist." * 
His effort to Approaching his fundamental concept from the commercial 

between the ^ ®'^^^' Webster manifested an almost supernormal prescience 
states. as to future conditions, so far as they involved the need for 

uniformity of law in general and -uniformity of congressional 
legislation affecting trade between the states in particular. 
"Merchants," he said, "must from the nature of their busi- 
ness certainly understand the interests and resources of the 
country the best of any men in it. ... I therefore humbly 
propose, if the merchants in the several states are disposed to 
send delegates from their body, to meet and attend the sitting 
of Congress, that they shall be permitted to form a chamber of 
commerce, and their advice to Congress be demanded and 

* Tocqueville was keenly con- been made, but the documentary 
scious of the fact that a great dis- evidence as to its real author was 
covery (une grande decouverte) had never accessible to him. 



II.] GREAT DISCOVERY IN MODERN POLITICAL SCIENCE 31 

admitted concerning all bills before Congress, as far as the same 
may affect the trade of the states. Besides the benefits which 
Congress may receive from the institution, a chamber of com- 
merce, composed of members from all trading towns in the 
states, if properly instituted and conducted, will prove very 
many, I might almost say innumerable advantages of singular 
utility to all the states. It will give dignity, uniformity, and 
safety to our trade." That recommendation was the only basic 
part of the plan of February 16, 1783, which the Convention 
of 1787 failed to adopt. But a century later the wisdom and 
foresight of its author were fully vindicated in that respect by 
the creation of the Department of Commerce and Labor, which Foreshadows 
is now performing, in a general way, the functions which were department 
to have been performed by the chamber of commerce in the and Labor, 
original plan.^ Thus it appears that the first modern effort to 
give unity to law in Germany was made by the merchant class 
as a prelude to the movement for national unity; thus it 
appears that the Annapolis Convention, called to establish a 
uniform commercial system, widened into the Federal Conven- 
tion of 1787; thus it appears that the "wholly novel theory" 
of federal government which was embodied in the work of that 
immortal assembly was the invention of a Philadelphia mer- 
chant and political economist, whose plan rested on two fun- 
damental concepts — a uniform and self-executing system of 
federal taxation, and a uniform commercial system, that would 
give "dignity, uniformity, and safety to our trade." Just as it 
has been said by a world-famous jurist that the merchant was 
"the father of the civil code of Germany," ^ so it may be said 
that a merchant was the father of the existing Constitution of 
the United States. The exigencies of the times demanded the Exigencies of 
invention ; a genius with special aptitude and training for the ^® d^^^if ^ 
task was at hand ; and he performed it with a perfect under- invention. 
standing of the magnitude of his achievement. Who can doubt 
that fact after feeling the glow of intellectual ecstasy with 
which he concludes this luminous statement: "But now the 

* President Roosevelt, in address- * See Dr. Rudolph Sohm's article 

ing at the WTiite House a delegation on the general theory and purpose 

headed by Mr. Straus, then Secretary of the code in The Forum, October, 

of Commerce and Labor, commented 1899. 
with great emphasis upon this fea- 
ture of Pelatiah Webster's plan. 



32 



THE AMERICAN CONSTITUTION 



[Ch. 



History of the 
records of the 
Federal Con- 
vention. 



Seal of secrecy 
P4\rtially 
broken in 
I8i8. 



great and most difficult part of this weighty subject remains to 
be considered, viz. : how these supreme powers are to be con- 
stituted in such manner that they may be able to exercise with 
full force and effect the vast authorities committed to them for 
the good and well-being of the United States, and yet so 
checked and restrained from exercising them to the injury and 
ruin of the states, that we may with safety trust them with 
a commission of such vast magnitude — and may Almighty 
Wisdom direct my pen in this arduous discussion." In such 
brilliant and comprehensive statements we have photographed 
for us the workings of a mind moving along paths never trod 
before. 

Naturally there are those who desire to know why it was, 
with such authentic and explicit documentary evidence avail- 
able, the world was not informed as to the real history of the 
authorship of the great invention from the very beginning. In 
the first place, it must be remembered that whenever a great 
intellectual performance takes place a certain time must elapse 
before its length, breadth, and depth can be correctly esti- 
mated. A long time passed by before even Shakespeare was 
permitted to enter into the full possession of his kingdom. In 
the second place, it must be remembered that the proceedings 
of the Federal Convention were shrouded in the profoundest 
secrecy, whose seal was not broken, even in part, until after the 
lapse of thirty-one years. Another period of twenty-three years 
had then to pass by before the most elaborate and decisive of 
all the memorials was finally given to the world. In order to 
keep its secrets the Convention, before final adjournment, di- 
rected its secretary to deposit "the Journal and other papers 
of the Convention in the hands of the President"; and in an- 
swer to an inquiry from him it was resolved that Washington 
"retain the Journal and other papers subject to the order of 
Congress, if ever formed under the Constitution." ^ Not until 
1 8 1 8 was the seal of secrecy upon the official record broken when 
Congress by a joint resolution directed the publication of the 
"Journal . . . and all actsand proceedings" of the Convention 
then in possession of the Government. Whatever was revealed 



* Documentary History of the Con- 
stitution, iii, 769-770. " Mr. King 
suggested that the Journals be 



either destroyed or deposited in the 
custody of the President," p. 769. 



II.l GREAT DISCOVERY IN MODERN POLITICAL SCIENCE 33 

between 1787 and 1818, generally under political pressure, was 
of a clandestine character. In that way Hamilton's sketch of 
a plan of government, unjustly represented as monarchical, 
submitted by him June 18, 1787, was printed as early as 1801, 
"with a view of destroying his popularity and influence." * 
John Quincy Adams, then Secretary of State, directed the print- 
ing at Boston in 1819 of the "Journal, Acts and Proceedings 
of the Convention . . . which formed the Constitution of the 
United States." ^ Among the many difficulties he encountered 
perhaps the gravest was that arising from the fact that Charles 
Pinckney's plan, offered on May 29, 1787, just after the Vir- Pinckney's 
ginia plan, did not appear in the record. Thus it became nee- p'^" ^'^^ '" 
essary for Adams to call upon Pinckney for a copy of the lost 
plan thirty-two years after its presentation to the Convention. 
In complying with that request, Pinckney stated to the Sec- 
retary of State that "it is impossible for me now to say which 
of the 4 or 5 draughts I have is the one. But enclosed I send 
you the one I believe was it." ^ The copy so furnished has for 
a long time been regarded as spurious, to a certain extent at 
least, largely because of a guarded yet hostile criticism made 
upon it after Pinckney's death, by Madison, who begins by 
saying that "the length of the document laid before the Conven- 
tion, and other circumstances, having prevented the taking 
of a copy at the time," ^ etc. Thus we have the fact fixed by 
the highest authority that the plan presented by Pinckney, 
reducing "his ideas of a new government to a system," was so 
elaborate that its "length" was one of the causes that pre- 
vented the making of a copy of it. There can be no doubt that not Copied. 
Pinckney's "system" was as elaborately worked out as Ham- 
ilton's "full plan, so prepared that it might have gone into 
immediate effect if it had been adopted." Only Pinckney and 
Hamilton formulated, before the Convention met, finished 
schemes of a new system of federal government; the Virginia 
Resolutions did not embody what may be called a plan ; they 
only set forth the basic principles upon which a new federal 
system might be constructed ; they only "brought before the 

* See Jameson, Studies, p. 148. Convention" in the Am. Hist. Re- 

' The Journal was reprinted in view, xiii, no. i, Oct., 1907. 

1830 as volume iv of the first edition 'J.Q.Adams, Memoirs, iv, 365. 

of Elliot's Debates. See Max Far- * Madison Papers, iii. Appendix 

rand's "The Records of the Federal no. 2, v. See also p. 735. 



34 



THE AMERICAN CONSTITUTION 



[Ch. 



Pinckney 
defended 
by Jameson 
and Nott. 



His plan 
submitted 
to Committee 
of Detail. 



Convention questions for abstract discussion and bases on 
which to rest principles of government." ^ Pinckney himself 
stated the matter with perfect accuracy when in writing to 
John Quincy Adams, December 12, 1818, he said: "The 
draught of the Constitution proposed by me was divided 
into a number of articles and was in complete detail — the 
resolutions offered by Mr. Randolph were merely general ones, 
and as far as I recollect they were both referred to the 
same committee." ^ And here let the fact be emphasized 
that, in the words of a recent investigator, "there exist four 
different texts of these resolutions, and what is more remark- 
able, it can (in the view of the present writer) be proved that no 
one of the four is the exact text of the original series which 
Governor Randolph laid before the Convention on May 29, 
1787." ' Thus it appears that the exact text of the Virginia 
Resolutions as well as that of the Pinckney plan is a matter of 
controversy. Fortunately for the fame of Pinckney, two dis- 
tinguished specialists, citizens of New England, have recently 
undertaken to defend his memory; and the outcome has been 
a very important contribution to the history of what occurred 
within the Committee of Detail. That outcome is so important 
that its essence will be restated within a narrow compass, as 
it has been of great value to the author in dealing with the 
authorship of the Constitution as a whole. The Virginia Re- 
solutions and the Pinckney plan, offered together on May 29, 
were at once referred to a Committee of the Whole; and, 
after a discussion that continued until June 13, it reported 
to the House the resolutions as it had amended and agreed 
upon them. Finally on July 26, the twenty-three resolutions, 
as the Convention had formulated them, were referred to 
the Committee of Detail, and "with the above resolutions 
were referred the propositions offered by Mr. C. Pinckney on 
the twenty-ninth of May, and by Mr. Paterson on the fif- 
teenth of June." ^ The Committee of Detail consisted of Rut- 
ledge, Randolph, Gorham, Ellsworth, and James Wilson.^ As 



^ The Mystery of the Pinckney 
Draught, 264. 

2 Writings of James Madison, iii, 

22. 

' Jameson, "Studies in the His- 
tory of the Federal Convention of 



1787," pp. 103-104, Annual Report 
of Am. Hist. Association. 

* Madison Papers, ii, 1225- 
1226. 

^ The duty of that committee 
was "to prepare and report a con- 



II.] GREAT DISCOVERY IN MODERN POLITICAL SCIENCE 35 

the last named was the dominating mind of the committee, it 

is not strange that he should have recorded what occurred as 

to the use made of the Pinckney plan or ''system," which was 

certainly more concrete and more elaborate than anything 

else with which the committee was called upon to deal. A few 

years ago the mystery was solved by the finding, among the 

Wilson manuscripts in the library of the Historical Society of New testi- 

Pennsylvania, of an outline of the genuine Pinckney plan, wlkon m?nu- 

by Professor Jameson,^ who says: "There came to the writer scripts. 

a manuscript containing large portions of the original text of 

the long lost Pinckney plan. 

"Then felt I like some watcher of the skies 
When a new planet swings into his ken." 

From a critical examination subsequently made, it appears 
that "the portion of the plan which Professor Jameson discov- 
ered contains not less than twenty propositions that are found 
in the report of the Committee of Detail and that are not in the 
twenty-three resolutions submitted to the committee, nor in 
the Virginia or Paterson resolutions. . . . By the help of the 
condensation of the plan which Professor Jameson discovered, 
and from the light thrown on the problem by the document 
printed below, we can say that Pinckney suggested some 
thirty-one or thirty-two provisions which were finally em- 
bodied in the Constitution; ... it must not be assumed that we 
know all that Pinckney thus contributed to the fabric of the 
Constitution ; ... if mere assertion based on analogy and gen- 
eral probability were worth while, other portions of the Consti- 
tution might be pointed to as coming from the ingenious and 
confident young statesman from South Carolina." ^ Thus, 
through the unearthing of a priceless document ("no docu- 
ments, no history"), Bancroft's foundationless assertion that 
"no part of it [the Pinckney plan] was used " ^ by the Conven- 
tion has been destroyed ; and in the same way Meigs's asser- 
tion, that "the Virginia plan became the bed-rock of the Con- 
stitution," has been entirely undermined.^ The fact is, strictly 

stitution," and the Convention * American Historical Review, 

adjourned until August 6, so that ix, July, 739-741. 
the Committee might have time * History of the Constitution, ii, 

to prepare and report the Con- 14. 

stitution. * The Growth of the Constitution, 

^ Studies, 128. 17. 



36 



THE AMERICAN CONSTITUTION 



[Ch. 



Pinckney pre- 
sented only 
real plan. 



Its influence 
on the Consti- 
tution. 



UnoflBcial 
records. 



speaking, there was no Virginia plan; the Virginia Resolutions 
presented only "questions for abstract discussion and bases on 
which to rest principles of government." The only plan or 
"system" actually presented to the Convention was that of 
Charles Pinckney, which, as the documentary evidence now 
available shows, was very largely used by the Committee of 
Detail in preparing their draft of the Constitution submitted 
to the Convention on August 6. In accounting for the loss of 
the original text of the Pinckney plan, it is hard to resist Judge 
Nott when he says: "Judging in the light of the facts which the 
case discloses, we must conclude that the only thing which 
would have justified the Committee of Detail in not returning 
the Pinckney draught to the secretary of the Convention was 
that it had been destroyed ; the only thing which would have 
justified the committee in destroying it was that they were 
compelled to use it as printer's copy." ^ How otherwise could 
it have escaped the vigilant Madison, who preserved a copy of 
everything else? No matter if the exact text of the Virginia 
Resolutions and the Pinckney plan have been lost ; it is certain 
that we possess the substance of both ; and it is equally certain 
that from the latter a large part of the details of the Constitu- 
tion were drawn. "If we discard the draught — the original 
draught, the disputed draught, and the draught described in 
the ' Observations,' the fact will remain that Pinckney was 
an important contributor to the work of framing the Constitu- 
tion." 2 

As public men of that day were accustomed to do their own 
reporting, it is not strange that many members of the secret 
conclave — notably Madison, Luther Martin, Yates, Pierce, 
Pinckney, Paterson, Hamilton, McHenry, and Mason — 
made notes of the proceedings for their own use and protec- 
tion. Certainly theirs was a fortunate precaution, as the official 
secretary, either through incompetency or neglect, kept what, 
according to Adams, "were no better than the daily minutes 
from which the regular journal ought to have been, but never 
was made out." ' That vacuum was never filled until "The 



* The Mystery of the Pinckney 
Draught, 241. 
2 Ibid. 261. 
' J. Q. Adams, Memoirs, iv, 385. 



For letters concerning his appoint- 
ment, see Doc. Hist, of the Constitu- 
tion, iv, 121-122, 169; and also Row- 
land, Life of George Mason, ii, 102. 



II.I GREAT DISCOVERY IN MODERN POLITICAL SCIENCE 37 

Papers of James Madison," who died in 1836, were purchased The Madison 
by Congress and published in three volumes under the editor- ^^p^^' ^^^• 
ship of Gilpin in 1841. All other records at once paled into 
insignificance in the presence of this invaluable storehouse, 
more than one half of which is made up of notes of the debates 
of the Convention. In his preface to the " Debates," Madison 
says: "I chose a seat in front of the presiding member, with 
the other members on my right and left hand. In this favor- 
able position for hearing all that passed, I noted in terms leg- 
ible and in abbreviations and marks intelligible to myself what 
was read from the chair or spoken by the members ; and losing 
not a moment unnecessarily between the adjournment and 
reassembling of the Convention, I was enabled to write out my 
daily notes during the session or within a few finishing days 
after its close." ^ Thus it appears that the record, as made up 
by the semi-official reporter, to whom many of the members 
supplied copies of their speeches and motions, and which has Entire record 
become the standard authority, was not published until fifty- fot p^bHshed 

, r 1 ^ • t 1 T- , ■'for fifty-four 

tour years after the Convention closed. Just at that moment, years, 
when a critical examination of the entire proceedings was, 
for the first time, made possible, the approaching storm of 
civil war suspended such inquiries until Bancroft broke the 
long silence by publishing in 1882, when he was quite an old 
man, his "History of the Formation of the Constitution of the 
United States of America." While that first attempt to write 
the history of the Federal Convention has undoubted merit, its 
many glaring inaccuracies and deficiencies admonish us that it 
was the mere beginning, not the end of an inquiry. As an illus- 
tration, reference may be made to Bancroft's cardinal con- 
tention that the work of the Convention rested on five plans: 
(i) the Virginia plan; (2) the Connecticut plan; (3) the Charles 
Pinckney plan; (4) the New Jersey plan; (5) the Hamilton 
plan. After pluming himself in his preface on account of the 
supposed discovery of a paper containing the so-called Con- Bancroft's so- 
necticut plan, he says in the body of the work: "The project ^^^^^ ^°°' 
which in importance stands next to that of Virginia is the 
series of propositions of Connecticut. It consisted of nine 
sections, and in the sessions of the Convention received the 
support of the Connecticut delegation, particularly of Sherman 
* Madison Papers, ii, 716; Doc. Hist., iii, 7960. 



38 



THE AMERICAN CONSTITUTION 



[Ch. 



Conditions at 
the time of 
Webster's 
discovery. 



and Ellsworth. It was framed while they were still contriving 
amendments of the Articles of Confederation . . . therefore, 
certainly before the 19th of June, and probably soon after the 
arrival of Sherman in Philadelphia," ^ For a quarter of a cen- 
tury that utterly foundationless story passed as authentic his- 
tory, until the author, in searching the records of the Conven- 
tion for a copy of the so-called Connecticut plan, discovered 
that no such plan was ever presented at the time alleged or at 
any other time. The whole story, so far as the Federal Con- 
vention is concerned, is a pure myth that existed only in Ban- 
croft's imagination. The facts are that the series of proposi- 
tions in question were drawn years before by Roger Sherman 
while he was a member of the Continental Congress, as amend- 
ments then to be proposed to the Articles of Confederation. 
But he never offered them either in the Continental Congress 
or in the Federal Convention; they were simply unused 
memoranda found among Sherman's papers after his death by 
his executors.^ 

From what has now been said it appears that the work of the 
Convention really rested on four plans, and from that number 
must be deducted the New Jersey plan, which, as it simply 
proposed a revision of the Articles of Confederation, is of no 
importance whatever so far as the passing into the Convention 
of the invention of February 16, 1783, is concerned. In simple 
yet emphatic terms Pelatiah Webster has thus explained the 
circumstances, under which that invention was made. He says: 
"At the time this Dissertation was written [Feb. 16, 1783] the 
defects and insufficiency of the old Federal Constitution were 
universally felt and acknowledged; it was manifest, not only 
that the internal policy, justice, security, and peace of the 
states could never be preserved under it, but the finances and 
public credit would necessarily become so embarrassed, pre- 
carious, and void of support, that no public movement, which 
depended on the revenue, could be managed with any effectual 
certainty: hut though the public mind was under full conviction oj 



* Hist, of the Constitution, ii, 36- 
37, and note i. 

* See "Life of Roger Sherman " by 
Jeremiah Evarts, in Biography of the 
Signers, ed. of 1828, pp. 42 seq.\ Life 
of Sherman, by Boutelle, 132-134. 



The author has dealt with the 
whole subject at length in the Yale 
Law Review for December, 1908, in 
an article entitled " A Bancroftian 
Invention." 



IL] GREAT DISCOVERY IN MODERN POLITICAL SCIENCE 39 

all these mischiefs, and was contemplating a remedy, yet the public 
ideas were not at all concentrated, much less arranged into any 
new system or form of government which would obviate these evils. 
Under these circumstances I offered this Dissertation to the 
public: How far the principles were adopted or rejected in the 
new Constitution, which was four years afterwards [Sept. 17, 
1787] formed by the General Convention, and since ratified 
by the states, is obvious to every one." The italicized portion 
of that statement is supported by the "entire body of contem- 
porary history. At that early day, four years and three months 
before the meeting of the Convention, there is no trace or No trace of 
suggestion of any other plan or project of a new Constitution ^^^ °*^!Lt 
that can be placed in rivalry or contrast with Webster's plan. time. 
Thus the great architect stands alone and isolated from all 
rivals in the solitude of his own originality.^ Of that all- 
important fact we have incontestable evidence furnished by 
Madison himself. In his "Introduction to the Debates in the 
Convention" he says: "As a sketch on paper, the earliest, per- 
haps, of a constitutional government for the Union (organized 
into regular departments, with physical means operating on 
individuals), to be sanctioned by the people of the states, act- 
ing in their original and sovereign character, was contained in 
the letters of James Madison to Thomas Jefferson, of the nine- 
teenth of March; to Governor Randolph of the eighth of April; 
and to General Washington of the sixteenth of April, 1787, for 
which see their respective dates." ^ That statement should 
close the controversy as to authorship, so far as Madison is 
concerned, as he frankly admits that he never made a "sketch Madison's first 
on paper" earlier than March and April, 1787. More than "^^^^^ ^u 
four years before that time, Pelatiah Webster, then in his fifty- and April, - 
ninth year, had given to the world his finished sketch, of more ^'^^'^' 
than thirty octavo pages, in which he had worked out in detail 
"a constitutional government for the Union (organized into 
regular departments, with physical means operating on indi- 
viduals), to be sanctioned by the people of the states, acting 

1 In the winter of 1784-85 Noah 1783, without material additions. 

Webster, then a young man of Daniel Webster, Noah Webster, and 

twenty-six, republished at Hartford, Pelatiah Webster were all of the 

in a pamphlet, entitled Sketches of same stock. 

American Policy, the substance of ' Madison Papers, ii, 714. See 

Pelatiah Webster's paper of Feb. 16, also 622, 630. 



40 



THE AMERICAN CONSTITUTION 



[Ch. 



Webster's 
paper spread 
broadcast, 
Feb. i6, 1783. 



Hamilton 
and Madison 
then in Phil- 
adelphia. 



Effects of 
Webster's 
initiative. 



in their original and sovereign character" — a government 
with the independent power of taxation, with a bicameral 
federal legislature, and with a federal judiciary supreme within 
its jurisdiction. Before the world had ever heard of anything 
but a one-chamber federal assembly he said, "That Congress 
shall consist of two chambers, an upper and a lower house, or 
Senate and Commons, with the concurrence of both necessary 
to every act." As the elaborate and formal paper announcing 
the great invention was published and spread broadcast at 
Philadelphia, then "the seat of Congress," on February 16, 
1783,^ certainly all the world must have been familiar with its 
contents when the Federal Convention met in that city on 
May 25, 1787. During the interval of four years and three 
months, Madison, Hamilton, and Pinckney were all members 
of the Congress of the Confederation. Madison took his seat 
in that body at Philadelphia, March 20, 1780, and was actually 
present in that city, as his letters show, on February 16, 1783. 
That he was personally familiar with Pelatiah Webster and his 
work we know -from his statement, heretofore quoted, to the 
effect that "in a pamphlet published in May, 1 781, at the seat 
of Congress," Webster had been the first to suggest the calling 
of a "Continental Convention" charged with the duty of mak- 
ing a new Constitution. Hamilton found Madison at Philadel- 
phia when he took his seat in Congress, November 25, 1782; 
he continued to be a member of that body until October, 1783 ; 
and, as the record shows, he was actually present in that city, 
February 16, 1783. Charles Pinckney was a member of Con- 
gress from 1784 to 1787. 

Only the blind or infatuated will contend that these vigilant 
and ambitious young statesmen, intent upon improving con- 
ditions then crying out for a remedy, did not read and master 
the contents of the great document, the first to propose the 
construction of a new federal system, published "at the seat 
of government," under their very eyes, by Pelatiah Webster on 
February 16, 1783. Certainly this ripe financier and trained 
political economist of fifty-seven was far better equipped to 

^ On the title-page this appears: printed, it covered 47 pages, i2mo, 
"Philadelphia. Printed and sold and is dated "Philadelphia, Feb- 
by T. Bradford, in Front Street, ruary 16, 1783." An original copy 
three Doors below the Coffee is to be seen in the Library of Con- 
House. MDCCLXXXiii." As originally gress. 



II.] GREAT DISCOVERY IN MODERN POLITICAL SCIENCE 41 

solve a problem, in its essence financial and commercial, than 
either Madison, Pinckney, or Hamilton could have been at that 
time. The relation that existed between the mature man of 
conteniplation and the younger men of action was just what 
it should have been. He formulated, in the light of his experi- 
ence, the novel principles which they were to translate into a 
working system of government. The effect of Webster's initiat- 
ive on Hamilton was almost instantaneous. On April i, 1783, Hamilton's 
just six weeks after the publication of the great document, °iotionof 
Hamilton expressed in Congress, for the first time, his desire 
" to see a general convention take place, and that he would 
soon, in pursuance of instructions from his constituents, pro- 
pose to Congress a plan for that purpose; the object would be 
to strengthen the Federal Constitution." ^ On April 18 ^ Con- Congressional 
gress was likewise impelled to move in the direction of a ^8*^'°°h28^" 
stronger government by appealing to the states for power to 
levy specific duties on certain enumerated articles, and five 
per cent on others. On April 28, and, as Bancroft admits, "so 
far as the records show never till then," ^ Congress appointed 
a committee on pending resolutions in favor of a general con- 
vention. A few months later, Robert Morris, the financier 
of the Revolution, resigned, "rather than be the minister of Motive of 
injustice," hoping thus to force upon the states the necessity ^o^ns's 
of granting taxing power to Congress.^ The great innovator 
was thus able, by his pen, to drive the men at the wheel to take 
official action designed to bring about the caUing of the " Con- 
tinental Convention" he had been the first to propose as early 
as 1 781; and at the same time to warn the states that they 
must arm Congress with taxing power, which was his basic 
contention. 

No critical mind should be tempted to confuse the sphere Difference 
that belongs to the architect, who made the great advance in 
modern political science by inventing, in 1783, an entirely master 
new plan of federal government, with the sphere that belongs '**"^^^'s. 

^ Madison Papers, i, 429, 430; dressed a last circular to the gov- 

EUiot, 81. ernor of every state urging the 

* Public Journals of Congress, necessity of granting to Congress 
17th and 1 8th of April, 1783, iv, some power to provide a national 
262, 265. revenue. The date of the circular 

' Hist, of the Const., \, 105. varies with the time of its emission. 

* In June, 1783, Washington ad- Sparks, viii, 439. 



between 
architect and 



42 THE AMERICAN CONSTITUTION [Ch. 

to the practical statesmen who, in 1787, seized upon that plan 
and transformed it into a working system. To each achieve- 
ment, entirely distinct from the other, belongs the reward of 
immortality. As the history of each is documentary there is no 
excuse for confusing the one with the other. In its last analysis 
the problem involves simply a comparison of four documents 
which are printed side by side in the Appendix. When their con- 
tents have been studied and compared, no one should fail to per- 
ceive that the invention as defined in the parent document of 
February 16, 1783, was simply restated, with large variations of 
detail, in the three "plans" completed by Madison, Pinckney, 
and Hamilton a short time before the meeting of the Federal 
Convention in May, 1787. Despite the fact that Madison says, 
in his letters of March and April, 1787, that he was the first 
to complete "a sketch on paper," it is more than likely that the 
far more elaborate sketches embodied in the plans of Pinckney 
and Hamilton were completed at or before that time. And 
here let it be said, to the honor of each of the draftsmen of the 
three plans, that no one of them ever claimed to be the author 
No draftsman or inventor of the "wholly novel theory" appropriated by all 
claimed to be ^^g Qonrimon property. If they failed in any duty it was in the 
negative one of declaring at the time that their work was based 
on a preexisting invention to which no one of them made any 
personal claim whatever. Such a claim upon the part of either 
would have put them at war with each other, a conflict that 
never existed. So long as we look to the documents for his- 
tory, we proceed, according to the ordinary rules of common 
sense, to trace three reproductions, identical in all vital particu- 
lars, to a common source. The moment the normal and obvi- 
ous conclusion thus reached is rejected, nothing remains but 
the impossible assumption that, in some miraculous way, the 
new plan was revealed, during a comparatively few months 
preceding the meeting of the Convention, to three youthful 
statesmen working in isolation and far removed from each 
other, no one of whom ever claimed to be the author of it. 
When Tocqueville declared that the "wholly novel theory" 
was "a great discovery in modern political science," when 
Gladstone declared that the new Constitution, whose excellence 
depends entirely upon that theory, was "the most wonderful 
work ever struck off at a given time by the brain and the pur- 



II.] GREAT DISCOVERY IN MODERN POLITICAL SCIENCE 43 

pose of man," neither attempted to particularize by indicating 
that the novel and path-breaking idea originated with one man, 
who, at a given time, solemnly submitted it to the world as his 
invention. The document that fixes that fact was not access- 
ible to either. If it had been, could either have hesitated to 
conclude that in this case, as in all others, a radically new An invention 
and complicated invention must have had a personal inventor ^P^i^s a per- 
specially qualified by genius and special study for the achieve- 
ment? The entire history of inventions repels the idea that such 
an intellectual performance is ever a corporate act arising 
impersonally out of the brains of many; it is always, in its 
inception, the personal product of the brain of a particular 
man specially qualified by nature for the task. In this case the 
marvel is in the perfection with which the inventor worked out 
his ideas in the first instance, and then elaborated them in 
formulas as terse and lucid as any ever constructed by Bacon 
or Burke. 

And yet after all has been said, the fact remains that the Work of the 
master builders, who transformed under the most difficult cir- master 
cumstances possible the dream of the great architect into 
a working system of government, achieved a result just as 
remarkable as the invention itself. The philosophers, states- 
men, jurists, warriors, experienced men of affairs, who com- 
posed the august assembly that wrought at Philadelphia in 
1787, may be compared, as to genius and learning, with the mas- 
ter spirits of any age.^ As colleagues of the peerless Washing- 
ton, who had himself drawn in advance three new constitu- 
tions, each of which aimed at making a stronger and more 
perfect union,^ Virginia sent her governor, Edmund Ran- Randolph, 
dolph, who afterwards served as Attorney-General and Secre- 
tary of State; James Madison, the draftsman of the Virginia Madison. 
plan and the semi-official reporter of the Convention; George 
Mason, who had drafted Virginia's incomparable bill of rights ; ^ Mason. 
and George Wythe, the great law teacher at William and Mary Wythe. 

* On hearing who were its mem- ' He was the first to express, in a 

bers, Jefferson wrote to one cor- dog7wa/ic/or7w, in that instrument the 

respondent that "the Federal Con- principle "that the legislative and 

vention is really an assembly of executive powers of the state should 

demigods." Works, ii, 260. be separate and distinct from the 

' See North American Review, xxv, judiciary." ^ 
2^3. 



44 



THE AMERICAN CONSTITUTION 



[Ch. 



Franklin. 
Wilson. 

Morrises. 

King. 
Gerry. 

Hamilton. 



Pinckneys. 



Rutledge. 



Butler. 



College and chancellor from 1778 until 1798, who was one of the 
very first to assert the power of the judiciary to put the stamp 
of nullity on an unconstitutional law.^ From Pennsylvania 
came the inspired printer Franklin, the philosopher, statesman, 
and diplomatist who had drafted the Articles of Confederation ; 
James Wilson, the profound Scotchman trained at the Univers- 
ity of Edinburgh, whose prophetic eye foresaw and whose lips 
foretold all that was to come; the bitter-tongued Gouverneur 
Morris, who did more than any other to give to the Constitution 
its final form; and Robert Morris, the bold and self-sacrificing 
financier of the Revolution, who drew so freely upon his own 
purse, and who resigned his office "rather than be the minister 
of injustice." From Massachusetts came Rufus King, a Har- 
vard graduate, who was afterwards Senator from New York and 
Minister to Great Britain from 1796 to 1803; Elbridge Gerry, 
also a Harvard graduate and a member of both the old and new 
Congress, who was elected Vice-President in 18 12, dying in 
office. From New York came Alexander Hamilton, the drafts- 
man of perhaps the most elaborate scheme of government 
taken to the Convention, whose brilliant career as an author of 
* 'The Federalist ' ' and dominant statesman during Washington's 
administration has fixed his fame for all time. From South 
Carolina came Charles Pinckney, who, at twenty-nine, drafted 
the "system" which, despite the loss of the original text, is 
surely destined to be recognized as one of the most potent 
forces in shaping the proceedings that followed its presenta- 
tion; Charles Cotesworth Pinckney, his kinsman, who was 
educated at Oxford and the Middle Temple, served with dis- 
tinction in the Revolutionary Army, was one of the envoys to 
France in 1797, and the Federalist candidate for the Presidency 
in 1804 and 1808 ; John Rutledge, who studied law in London at 
the Temple, served in the Continental Congress, was governor 
of his state from 1779 to 1782, and finally Chief Justice of the 
United States; and the gifted Pierce Butler, who, underestimat- 
ing "the dynamic energy of freedom in producing wealth, and 
attracting and employing and retaining population," ^ vainly 



* See his judgment in Com. v. 
Co;o»,4 Call (Va.) 5-21. In the lat- 
ter part of his life he emancipated his 
slaves. 



' Bancroft, History of the Forma- 
tion of the Constitution of the United 
States, ii, 87. 



II.] GREAT DISCOVERY IN MODERN POLITICAL SCIENCE 45 

dreamed that swarms of emigrants were about to throng every 
path to the Southwest. "North Carolina, South CaroHna, and 
Georgia," he said, "will have relatively many more people than 
they now have. The people and strength of America are 
evidently bearing to the South and Southwest." ^ From Con- 
necticut came Oliver Ellsworth, a graduate of Princeton, and Ellsworth. 
Chief Justice of the United States from 1796 to 1800, whose 
great title to fame rests upon the fact that he drafted the 
Judiciary Act of 1789, which "may be said to reflect the views 
of the founders of the Republic as to the proper relations 
between the federal and state courts"; ^ and Roger Sherman, Sherman. 
who rose from the bench of a shoemaker, first to a high place 
at the bar and then to the Senate of the United States. From 
New Jersey came William Paterson, the draftsman of the Paterson. 
plan that rested upon the idea that the proper object of the 
Convention was a mere revision and extension of the Articles 
of Confederation. From North Carolina came Alexander 
Martin, William R. Davie, Richard Dobbs Spaight, and Hugh Martin, Davie, 
Williamson, who, at the critical moment, prevented a cata- Spaight, Wil- 
strophe and saved the Convention from dissolution. When the 
Connecticut compromise — which proposed that the new 
Congress should be made up of two houses, one representing 
the states in proportion to their population, the other giving 
an equal vote to each state — was trembling in the balance. 
North Carolina saved the Convention by deserting her larger 
associates, thereby giving a majority of one to the smaller 
states. In the midst of that crisis it was that Franklin, for- 
getting the mocking skepticism of his youth, proposed that 
the Convention should be opened every morning with prayer.' 
No assembly so small — it numbered only fifty-five dele- 
gates — was ever dominated by so many men of the highest 
order. They need not strut in borrowed plumes ; they need Need no fame 
no fame that belongs to another. The most ardent wor- i^ot their own. 
shiper of the master builders would only belittle their im- 
mortality if he fancied that it could be at all dimmed by the 
rendition of tardy justice to the great architect, the man of 

^ Madison Papers, iii, 109 1- and the longer I live the more con- 

1093; Elliot, 308, 309. vincing proofs I see of this truth — 

2 Mr. Justice Field in Virginia v. that God governs in the affairs of 

Rives, 100 U. S. 338. men." Madison Papers, ii, 985. 

' "I have lived, sir, a long time, 



46 



THE AMERICAN CONSTITUTION 



[Ch. 



Personal con- 
duct of Pela- 
tiah Webster. 



His two bugle 
calls of 1781 
and 1783. 



Record of Con- 
vention a sealed 
book to him. 



contemplation, who was their natural, perhaps their necessary 
forerunner. 

When we contemplate the personal conduct of Pelatiah 
Webster, in the midst of what must have been one of the most 
trying ordeals through which a creative intellect ever passed, 
every generous mind must be touched by his steadfast hope 
for the future, his self-sacrificing patriotism and humility. In 
closing the dissertation in which he announced his invention, 
he made this stirring appeal to the men who were to take up 
the work at the point at which he left it: "This vast subject 
lies with mighty weight on my mind, and I have bestowed on 
it my utmost attention, and here offer the public the best 
thoughts and sentiments I am master of. I have confined 
myself in this dissertation entirely to the nature, reason, and 
truth of my subject, without once adverting to the reception 
it might meet with from other men of different prejudices or 
interests. To find the truth, not to carry a point, has been my 
object. I have not the vanity to imagine that my sentiments 
may be adopted ; I shall have all the reward I wish or expect, 
if my dissertation shall throw any light on the great subject, 
shall excite an emulation of inquiry and animate some abler 
genius to form a plan of greater perfection, less objectionable 
and more useful." In response to his first bugle call, made as 
Madison tells us as early as 1781, the "Continental Conven- 
tion" he was the first to propose assembled in May, 1787, to 
make a new Constitution; in response to his second bugle call, 
made February 16, 1783, three men of genius went to that Con- 
vention bearing with them as a basis for its action, in rigidly 
constructed formulas, his invention, "the most wonderful work 
ever struck off at a given time by the brain and purpose of 
man." In the full sense of the term the three draftsmen were 
men of genius, who did all that remained for them to do. The 
great invention having been made in advance, they could not 
make it over again ; it only remained for them to restate it and 
adapt it to the practical end for which it was designed. As 
each draftsman restated the new theory from his own point of 
view, each plan may be compared to the facet of a diamond 
from which the central light must flash at the angle it defines. 
As the proceedings of the Convention remained a sealed book 
until long after Pelatiah Webster's death at Philadelphia in 



IL] GREAT DISCOVERY IN MODERN POLITICAL SCIENCE 47 

September, 1795, he of course never saw any of the plans 
offered ; nor did he have any means of investigating the parlia- 
mentary processes through which the finished product finally 
arose out of those plans. 

Not until the completed instrument was given to the world, Webster first 
after the adjournment of the Convention on the 17th of Sep- to defend the 
tember, was Pelatiah Webster able to greet and defend the tion. 
child of his brain with a father's zeal and a father's love. When 
on the 29th of that month an unpatriotic minority of sixteen 
members of the Assembly of Pennsylvania — after attempting 
on the day before to delay by breaking a quorum the reference 
of the new Constitution to conventions of the states — bit- 
terly assailed it in an address to their constituents, Webster's 
strong right arm was the first raised to defend it. In falling 
upon the factious secessionists he said: ^ "It appears the great 
object, the great motive of this desperate step, was to render 
ineffectual a resolution of the House (carried by forty-three 
against nineteen) * recommending the calling of the convention 
to consider of the Constitution proposed by the Federal Con- 
vention, and to approve or disapprove of the same.'" After 
answering the objections, stated in the address, to a federal 
assembly of two chambers, very nearly in the language in which 
he had originally proposed such an assembly, he said: "Vide a Refers ex- 
' Dissertation on the Political Union and Constitution of the P^^f^.^'y to ^^ 
Thirteen United States,' published by a citizen of Philadelphia, 
February 16, 1783, where the subject is taken up at large." 
Then in defending "the power of taxation vested in Congress," 
which he had also been the first to propose, after summarizing 
his original argument in favor of it, he said: "No man has any 
right to find fault with this article, till he can substitute a bet- 
ter in its room." In replying to the objection of the sixteen 
"that the liberty of the press is not asserted in the Constitu- 
tion," he said : " I answer, neither are any of the Ten Command- 

^ This remarkable and practically mended to the late Federal Conven- 

unknown paper, published Oct. 12, tion." On the original print, to be 

1787, is entitled "Remarks on the seen in the Library of Congress, 

Address of sixteen members of the this appears :" Philadelphia. Printed 

Assembly of Pennsylvania to their by Eleazer Oswald, at the Coffee 

constituents, dated Sep. 29, 1787, House, m.dcc.lxxxvii." See Ap- 

with some strictures on their objec- pendix Xix. 
tions to the Constitution, recom- 



" Brutus." 



48 THE AMERICAN CONSTITUTION [Ch. 

ments,but I don't think it follows that it was the design of the 
Convention to sacrifice either the one or the other to con- 
tempt." In reasserting the supremacy of federal law he said: 
"If admitting such powers into our Constitution can be called 
a sacrifice, 't is a sacrifice to safety, and the only question is 
whether our union or federal government is worth this sacri- 
fice." In conclusion he said: "That the distresses and oppres- 
sions both of nations and individuals often arise from the powers 
of government being too limited in their principle, too inde- 
terminate in their definition, or too lax in their execution, and 
of course the safety of the citizens depends much on full 
and definite powers of government, and an effectual execution 
of them." A few weeks later, when "Brutus" — probably 
Robert Yates, a member of the Convention from New York — 
His reply to made a like assault, Webster was ready with a sharp reply in a 
pamphlet dated Philadelphia, November 4, and entitled, "The 
Weakness of Brutus Exposed : or some remarks in vindication 
of the Constitution proposed by the late Federal Convention 
against the objections and gloomy fears of that writer." ^ 
"Brutus dwells," he said, "on the vast powers vested in Con- 
gress by the new Constitution, i. e., of levying taxes, raising 
armies, appointing federal courts, etc.; takes it for granted 
that all these powers will be abused, and carried to an oppress- 
ive excess ; then harangues on the dreadful case we shall be in 
when our wealth is all devoured by taxes, our liberty de- 
stroyed by the power of the army, and our civil rights all sacri- 
ficed by the unbounded power of the federal courts. And when 
he has run himself out of breath with this dreary declamation, 
he comes to the conclusion he set out with, viz., that the thir- 
teen states are too big for a republican government, which 
requires small territory, and can't be supported in more ex- 
tensive nations." To that Webster answered: "We must have 
money to support the Union, and therefore the power of raising 
it must be lodged somewhere; we must have a military force, 
and of consequence the power of raising and directing it must 
exist ; civil and criminal cases of national concern must arise, 
therefore there must be somewhere a power of appointing 
courts to hear and determine them. These powers must be 

^ "Printed by and to be had of John Sparhawk, Market Street, near 
the Court House, m.dcc.lxxxvii." 



II.l GREAT DISCOVERY IN MODERN POLITICAL SCIENCE 49 

vested in Congress ; for nobody pretends to wish them vested 
in any other body of men." In conclusion he asks: "By what 
sort of assurance, then, can Brutus tell us that the new Consti- 
tution, if executed, must certainly and infallibly terminate in 
the consolidation of the whole into one great republic, sub- 
verting all the state authorities ? His only argument is, that 
the federal powers may be corrupted, abused, and misapplied, 
'till this effect shall be produced.'" Webster's counterblast 
was: "The same argument will prove, with equal cogency, that 
the constitution of each particular state may be corrupted in 
practice, become tyrannical and inimical to liberty. In short, 
the argument proves too much, and therefore proves nothing: 
't is empty, childish, and futile, and a serious proposal of it, is, 
I conceive, an affront to the human understanding." After 
thus disposing of the despairing Brutus, he concludes with this 
weighty reflection: "No form of government can preserve a Weighty 
nation which can't control the party rage of its own citizens; reflections. 
when any one citizen can rise above the control of the laws, 
ruin draws near. 'T is not possible for any nation on earth to 
hold their strength and establishment when the dignity of 
their government is lost, and this dignity will forever depend 
on the wisdom and firmness of the officers of the government, 
aided and supported by the virtue and patriotism of their citi- 
zens; . . . the grand secret of forming a good government is, 
to put good men into the administration." 

As the new Constitution, which Webster first designed and Canonization 
then defended, grew into a popular idol, and, as such, passed 
through a process of canonization, the master builders who 
composed the Convention came to be regarded rather as demi- 
gods than as men. But while they were being thus exalted, and 
justly, the veil of secrecy — which for fifty-four years was not 
entirely lifted from all that took place within the secret con- 
clave — concealed from the eyes of the world the Titanic 
figure in the background that is now looming up large on the 
distant horizon and becoming more and more distinct in the 
light of its increasing glory. With a perfect comprehension of 
the grandeur of his achievement, and with a trusting faith in 
the justice to be done him in the time to come, the great archi- 
tect took the precaution in 1791 to republish his disserta- 
tion with notes, in which he stated with considerable detail the 



of the new 
ConstitutioQ. 



50 



THE AMERICAN CONSTITUTION 



Webster's 
republication 
and appeal 
to posterity. 



circumstances attending its original publication. At the close 
of that republication he made, with stately dignity and humil- 
ity, this appeal to posterity: "But if any of those questions 
should in future time become objects of discussion, neither the 
vast dignity of the Convention, nor the low, unnoticed state of 
myself, will be at all considered in the debates ; the merits of the 
matter, and the interests connected with or arising out of it, will 
alone dictate the decision." That appeal and the document 
of February i6, 1783, survive as immortalities. The eminent 
French critic and historian Ch.-V. Langlois has said: "History 
is studied from documents. Documents are the traces which 
have been left by the thoughts and actions of men of former 
times. There is no substitute for documents : no documents, no 
history." While the priceless legacy bequeathed by the immor- 
tal document of February 16, 1783, has become the heritage of 
swelling millions, an humble and neglected grave at Phil- 
adelphia ^ has been the only recompense so far received by its 
author. Every drummer boy, every foreigner who rendered 
conspicuous service to the patriot cause during the Revolu- 
tionary era has been honored by a monument, — only the 
architect of our Federal Constitution has been forgotten. 



1 " Pelatiah Webster, the eldest 
son of Pelatiah and Joanna (Smith) 
Webster, and grandson of George 
and Sarah Webster, of Lebanon, 
Connecticut, was born in Lebanon, 
on November 24, 1726. . . . He died 
in Philadelphia, September 10, 1795, 
in his 69th year. His wife died in 
Philadelphia of the yellow fever, in 
October, 1793, and their only son 
died early. Their two daughters 
[Ruth and Sophia] married, respect- 



ively, John and Thaddeus Perit, 
and three of their children were 
graduated at Yale." Dexter's Yale 
Biographies and Annals, ii, 97 to 
102. The son of Ruth Webster and 
John Perit was Pelatiah Webster 
Perit, a famous New York mer- 
chant, who was for many years 
president of the Chamber of Com- 
merce in that city. See Perkins, 
OldHouses of Norwich, Conn., 322. , 



CHAPTER III 

THE EVOLUTION OF THE TYPICAL AMERICAN STATE 

The two most important single events in the history of the The two 
western world were the Anglo-Saxon migration from the Con- ^^atkms°° 
tinent into Britain, which began about the middle of the fifth 
century, and the Anglo-Saxon migration from Britain to the 
eastern coast of North America, which began early in the 
seventeenth century. Out of the first migration grew the dom- 
inant state in Britain known as England, out of the second 
grew the forty-six reproductions of that state which now con- 
stitute the American Commonwealth. When the two migra- 
tions are viewed as a connected whole it is easy for the student 
of the Science of Politics, who recognizes the law of growth as 
the law of constitutional life, to trace the mighty stream of 
Teutonic democracy from its sources in the village moots and 
state assemblies of Friesland and Sleswick across the Northern 
Ocean into Britain, and across the Atlantic into North Amer- 
ica. By that process it is possible to demonstrate that the Fed- 
eral Republic of the United States is the lineal descendant of 
those ancient German tribal federations of which we catch our 
first glimpses in the pages of Caesar and Tacitus. In the entire Unbroken 
history of institutions it is impossible to find any example so ^Jjf ^ent^ 
striking of the persistent and unbroken development of polit- 
ical organization from its primitive forms in the simple life of 
the barbarian up through all the advancing stages of civiliza- 
tion to the climax in the most complex political organism that 
ever existed. 

Through the first migration the Teutonic invaders trans- Growth of the 
ferred from the fatherland into Britain that tenacious system ^^s^^^ state 

f 1 1 ir . • • ft . '° Bntam. 

of local self-governing communities out of whose union arose 
the old English commonwealth, which represented an aggre- 
gation of shires, — each shire representing an aggregation of 
hundreds, each hundred an aggregation of townships. When 
the Norman came he seized the central powers of the state, and 
upon the Old-English system as a substructure he built up 



52 



THE AMERICAN CONSTITUTION 



[Ch. 



Substantial 
identity of 
two great 
settlements. 



Darwin's 
statement. 



Two migra- 
tions con- 
trasted. 



a new central system as a superstructure, and out of the fusion 
between the two gradually emerged the English Constitution as 
it exists to-day. The English emigrants who founded upon the 
eastern coast of what is now the United States a group of 
colonial commonwealths brought with them in their blood and 
bone that peculiar system of state organization which had been 
thus maturing in an island world for more than a thousand 
years. They brought with them ready-made the language, the 
laws, the political institutions of the old land, to be modified 
and adapted to the changed conditions of the new. The settle- 
ments made by the English colonists in America in the seven- 
teenth century were in all material particulars substantial 
reproductions of the English settlements made in Britain in 
the fifth. In both instances the settlers crossed the sea in ships 
in small companies, and in both lands they grouped themselves 
together in distinct and practically independent self-governing 
communities. The thirteen English colonies that arose on our 
Atlantic seaboard out of the aggregation of such communities 
were in no sense artificial creations, — they were the predes- 
tined product of a natural process of reproduction. American 
constitutional history therefore begins, not with the landing 
of the English in America in the seventeenth century, but with 
the landing of the English in Britain in the fifth. 

Out of the Anglo-Saxon migration across the Atlantic, which 
Darwin once said may very likely be the most important event 
in human history, grew the thirteen colonial commonwealths 
that fringed our Atlantic seaboard towards the close of the 
eighteenth century, and out of their union finally arose the 
Federal Republic of the United States. The founders of these 
English states in America, who crossed the sea in ships in 
small companies, expelled the native race, and then replanted 
their ancient and peculiar system of political institutions in a 
free and unencumbered soil from which they drew absolutely 
nothing. The political communities thus replanted as exotics 
were reproductions in a modified form of the mother state 
known as England. Something like eight centuries before, that 
mother state arose out of a series of settlements made by a set 
of Low-Dutch tribes, known as Engles, Saxons, and Jutes, who 
likewise crossed the sea in ships in small companies, and, after 
expelling the native race within a given area, created in Britain 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 53 

"a Germany outside of Germany." ^ The mother state thus 
replanted as an exotic on a foreign soil drew therefrom prac- 
tically nothing. So for the fatherland of the English race we 
must look far away from England itself. At the time of the 
migrations into Britain the Engles, or at least a portion of 
them, were residing in Angeln,^ or Engleland, within the dis- 
trict which is now called Sleswick, while the main body lay 
probably in what is now Lower Hanover and Oldenburg. On 
one side of them the Saxons of Westphalia occupied the land 
from the Weser to the Rhine; on the other, the Eastphalian 
SsDcons stretched away to the Elbe; while to the north of the 
ff^agment of the English folk in Sleswick lay another kindred 
tribe, the Jutes, whose name is still preserved in their district 
of Jutland. The three tribes were of the purest Teutonic type, 
and all spoke dialects of the Low German. Upon these data 
was based the statement heretofore made that, by the aid of 
the historical method, it is not difficult to trace the mighty 
stream of Teutonic democracy from its sources in the village 
moots and state assemblies of Friesland and Sleswick across 
the Northern Ocean into Britain, and across the Atlantic into . 
North America. The student of American constitutional his- 
tory must therefore take as his starting-point the primitive The starting- 
political institutions of the three tribes before the migration ^"^*' 
into Britain began; and for that starting-point he must look 
to the brief history of the childhood of the whole Teutonic 
race as contained in those terse sketches of the ancient freedom 
which have been preserved by Caesar and Tacitus.^ 

That homogeneous race called Teutonic, although possessed CivUas of 
of a common system of social, religious, and political institu- '^^^ ^^^ 
tions, was nevertheless broken up into an endless number of — 

communities or states, which stood to each other in complete 
political isolation, except when united in temporary confeder- 
acies. In their general descriptions of the German people both 
Caesar and Tacitus had constantly in mind the existence of 
these disconnected states into which the race as a whole was 

^ Taine, Hist, of Eng. Literature, within the district which is now 

i, 50. called Sleswick." Green, Hist, oj 

* "In the fifth century after the the Eng. People, i, 87. 

birth of Christ the one country ' De Bella Gallico, vi, 23; Ger- 

which we know to have borne the mania, cc. 8, 10, 12, 13, 14, 15, 19, 

name of Angeln or England lay 25, 30, 41. 



54 



THE AMERICAN CONSTITUTION 



[Ch. 



Pagus, gau, 
or shire. 



Four classes. 



subdivided, and which each termed the civitas, with the ex- 
planation that what was true of the race in one state was true 
of the race in all the states, excepting, perhaps, the few particu- 
lars in which the monarchical differed from the non-monarch- 
ical. The primary bond that united the people of a state 
(civitas) was a personal one ; the king was the head of the race, 
the first among the people, and not the king of a particular area 
of territory. The largest division of such a state is usually de- 
signated in Latin pagus; in German, gau or ga; in Old-English, 
scir or shire, terms that finally gave rise on the Continent to 
the word "hundred." The hundreds were divided into village 
communities, the vici of Tacitus, who says that Teutonic so- 
ciety embraced four ranks or classes: the nobles, simple free- 
men, freedmen, and slaves. These four classes dwelt either in 
villages, vici, with a series of adjoining buildings, every home- 
stead having a vacant space of ground about it ; or apart from 
villages in isolated homesteads, wherever a grove, meadow, or 
spring happened to attract them. The following diagram 
illustrates in a general way this primitive system of state 
organization which is the starting-point of everything. 



The State (civitas) 




1- 


eg) 




o 

B" 


GID 

cp 
do 




_ 


;i^ 






The vflkge 
community.' 



The vicus represents the Teutonic form of the village com- 
munity, and the portion of territory occupied by it is termed 
in the German muniments the "mark," a place marked with 
definite boundaries. In the mark-moot or town-meeting was 
transacted all the business that arose out of the system of 
common cultivation, and out of the enjoyment of common 



IIIJ EVOLUTION OF THE TYPICAL AMERICAN STATE 55 

rights.* The German mark became the English township, 
which was reproduced in its primitive form in New England, 
with its town-meeting and common lands, intact. The affairs 
of Boston continued to be administered by its town-meeting Boston, 
down to 1822, when its qualified voters numbered seven thou- 
sand.^ Despite the fact that when the population of a New 
England town exceeds 10,000 or 12,000, it is usual for it to be 
incorporated as a city, "the town system is the general one; 
the city, or representative system, is the exceptional one." ' 

By the union of two or more marks was formed the pagus, The hundred 

gau, or shire, known in later times as the hundred. "The hun- ^°^,*^^ ^^■ 

dred court, 
dred, and the principle that the hundred community is a judi- 
cial body outlived the storms of the folk wanderings, the polit- 
ical creations of Clovis, the reforms of Charlemagne, the dis- 
solution of the Prankish Empire, the dissolution of the county 
system." * The hundred court, like all other Teutonic courts, 
was a popular assembly, composed of all freemen resident in 
the district. In this court was administered regularly and fre- 
quently the customary law; it met, perhaps, once a month, and 
in addition to its judicial duties, it discharged many adminis- 
trative functions. In the state assembly a chief was chosen to 
act as a magistrate in each hundred. He presided in the hun- 
dred court and with him were associated a hundred assessors, 
chosen from the body of the people, who attended to give their 
advice and to strengthen the hands of justice. As by a union of 
two or more marks the hundred was formed, so by the union 
of two or more hundreds the state was formed. The supreme 
powers of the state were vested in a state assembly, in which The state 
every freeman had his place ; each had an equal voice ; and it assembly, 
was the custom for all to appear fully armed. The business 
presented was all prepared beforehand by a permanent council 
composed of the magistrates, principes, who decided all minor 
questions, reserving only the graver ones for the consideration 
of the whole people. In the state assembly, as a high court of 
justice, accusations were exhibited, and capital offenses prose- 
cuted.® Those guilty of treason and desertion were hanged ; 

^ G. L. von Maurer, Markenver- i, loi, and note; Fiske, American 

fassung, 142; Einleitung, 1 41-150. Political Ideas, 33. 

* See Josiah Quincy's Municipctl * Sohm, Die frdnkischeReichs-und 

Hist, of Boston, 28, 41. Gerichtsverfassung, i, 541. 

' Dillon, Municipal Corporations, ^ Sohm, loc. cit., p. 5. 



56 



THE AMERICAN CONSTITUTION 



[Ch. 



Military 
organization. 



Transfer of 
institutions. 



Period of 
Teutonic 
conquest. 



those guilty of cowardice and unnatural vices were suffocated 
in the mud. All other offenses could be atoned for by fines, 
a part of which was paid to the king or state and part to the 
person injured or to his family. 

So closely did the scheme of military organization resemble 
the system of political organization, that a comparison has 
happily been made between the state in its territorial aspect 
and the army in permanent encampment.^ The mass of the 
people fought together in groups that represented the village 
communities ; each pagus or hundred contributed its hundred 
warriors to the host; while the third element of the army con- 
sisted of bands of professional warriors, united to a leader of 
their choice in a close and peculiar clanship, called the comi- 
tatus. When the whole people were in arms we have "popular 
assembly, parliament, law court, and army all in one." ^ In 
other words, the primitive Teutonic state was a personal 
organization, a marching military state. It is therefore easy 
to understand how an army of invasion, composed either of the 
whole people of a state or of a single division, embodied in 
its organization the primitive political system, which it would 
naturally reproduce, in whole or in part, whenever a settle- 
ment was made in conquered territory. If the expedition 
happened to be composed of a single group of kindred, upon 
a settlement being made in a new land its members would 
naturally draw together upon the old plan in a village com- 
munity.* If the expedition happened to be composed of many 
groups, united under a common leadership, a cluster of village 
communities would as naturally result. After the units of 
organization had thus been reproduced and brought into 
contact, first the hundred and last the state (civitas) would 
reappear. With these facts firmly in hand it is comparatively 
easy to understand how the transfer of the primitive Teutonic 
system from the Continent into Britain was brought about. 

During the century and a half that intervened between the 
middle of the fifth century and the end of the sixth, the Teu- 

^ Stubbs, Constitutional History, abode by Harling, and Billing by 

1,31. Billing ; and each ' wick ' or ' ham ' or 

* Essays in Anglo-Saxon Law, p. 8. ' stead ' or ' tun ' took its name from 

' " And as they fought side by the kinsmen who dwelled together 

side on the field, so they dwelled in it." Green, Hist, of the Eng. 

side by side on the soil. Harling People, i, lo. 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 57 

tonic settlements in Britain were made. Within that period 
the whole island, south of the firths of Forth and Clyde, passed 
from the possession of the native race to that of the conquerors, 
with the serious exception of a broad and almost continuous 
strip of country extending along the entire western coast, and 
embracing North and West Wales, Cumbria, and Strathclyde. 
Within that area the entire native or Welsh population with- 
drew, with whatever of civilization, religion, or law they had 
derived from Rome. In that part of the land the conquerors 
made their own, they planted the entire fabric of Teutonic 
life — social, political, and heathen — which they had brought 
with them in their blood and bone from the fatherland. It is 
therefore impossible to exaggerate the importance of this 
period of conquest and settlement, — it is the starting-point 
of everything. At the moment that period ends Christianity Christianity 
begins, and from its introduction the committing of the cus- tomaVlaws. 
tomary law to writing appears to have begun. ^ Just before the 
end of the eighth century, we have the " Ecclesiastical History " 
of Baeda, from which is derived the only substantial account of 
the century and a half that followed the coming of Augustine. 
To these imperfect records have been added the fruits of the 
most exhaustive archaeological and geographical research. The 
one fact we learn from these sources that stands out in im- 
portance above all the rest is that the Teutonic conquerors of 
Britain founded at the outset what are generally known as the The rice or 
early kingdoms which were genuine reproductions of the states ^^^^ ^^ ^^' 
(civitates) described by Caesar and Tacitus ^ and illustrated by 
the foregoing diagram. In tun-moot as in mark-moot the as- 
sembled villagers met to regulate their local and agricultural 
concerns; in the gemot or meeting of all the freemen resident 
within the pagus or early shire, we have in fact, if not in name, 
the hundred court of the Continent; while the primitive state 
assembly is the folk-moot, the meeting of the whole people in 
arms. These early kingdoms, which preserved their ancient 
boundaries, their national assemblies or folk-moots, and for 

' The promulgation of the laws of ' "The civitas or populus of Taci- 

^thelberht took place at some time tus, the union of several pagi, is 

between the coming of Augustine in in Anglo-Saxon history the rice or 

596 and his death in 605. Baeda kingdom." Stubbs, Const. Hist., 

says these laws were enacted "cum i, 119. 
consiUo sapientium." Hist. Eccl., ii, 5. 



58 



THE AMERICAN CONSTITUTION 



[Ch. 



Origin of the 
modem shire. 



Process of 
aggregation. 



a long time their tribal kings, became shires or counties in the 
aggregation finally known as the Kingdom of England. The 
map of England of to-day clearly discloses the origin of the 
modern shire in what may be called the primitive rice or king- 
dom. Out of the principalities founded by the Somersaetas, the 
Dorsaetas, the Wilsaetas, the Middle Saxons, the East Saxons, 
the South Folk, the North Folk, have grown the shires of Som- 
erset, Dorset, Wilts, Middlesex, Essex, Suffolk, and Norfolk. 
Hampshire, Berkshire, and Devonshire are equally ancient, 
being mentioned in the " Chronicle" as shires as far back as 
yEthelwulf.^ Kent and Sussex are two of the heptarchic king- 
doms whose original shires are perhaps represented by their 
lathes and rapes. In Wessex the shire system attained its earli- 
est and purest development. The West Saxon shires retain to 
this day the names and boundaries of the early settlements 
founded by the successors of Cerdic. It is more than likely, 
however, from the evidence of local nomenclature that Mercia 
was artificially divided into shires by the English kings after 
the reconquest from the Danish invaders.^ The Kingdom of 
England is, in fact, a mere aggregation of shires, whose govern- 
ments represent the entire local machinery of the Constitution. 
It is all important to grasp at least the outline of the process 
of aggregation out of which the Kingdom of England finally 
arose. While the development of Germany advanced in the 
path of political consolidation, that of England advanced in 
the path of political confederation. The course of that develop- 
ment is broken into two well-defined epochs: the first, em- 
bracing the drawing together of the early kingdoms into the 
seven or eight aggregates generally known as the heptarchic 
states; the second, the drawing together of the heptarchic 
states into the one united kingdom of all the English under 
the House of Cerdic. When written history first reveals to us 
through the pages of Bseda the form the new society in Britain 
had assumed, the seven or eight aggregates, generally known as 
the heptarchic states, were even then manifesting a tendency to 
group themselves in three great masses, soon to be known as 
the kingdoms of Northern, Central, and Southern Britain.' 



1 E. Chron., a. 851, 860. 
* Freeman, Norm. Conquest, i, 32, 
and Appendix, note E. 



' Green. The Making of England, 
299 n. 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 59 

By 593 it is probable that this threefold division was clearly Threefold di- 
established. How to destroy it so as to unite the whole English ^^°° brokeu 
nation under the rule of a single overlord was a problem that two centuries 
required for its solution a period of more than two hundred of struggles, 
years. The first effort to establish such a unity, clearly fore- 1 

shadowed and encouraged by the unity of the church, was 
made by Northumbria,^ whose supremacy was established over 
all the English kingdoms except Kent. With her failure in 659 
Mercia essayed the task, but despite the fact that Offa, who 
succeeded to the throne in 758, rose high enough to aspire to a 
correspondence on equal terms with Charles the Great, he was 
never able to establish his overlordship over either of the rival 
kingdoms of Northumbria and Wessex.^ To the latter, which 
grew out of a small settlement made on the coast of Hamp- 
shire by an invading host led by the ealdormen, Cerdic and 
Cynric, was to come the final victory. In 825 Ecgberht, after Triumph of 
extending the supremacy of Wessex to the Land's End, ven- Wessex m 825. 
tured in the hour of victory, for once at least, to style himself 
King of the English.' Through his conquests all the Teutonic 
states in Britain became mere dependencies of Wessex, as 
under-kingdoms. Not, however, until after a century and a 
half had passed by did these loosely united states become 
incorporated as integral parts of one consolidated kingdom. 
That result was accomplished during the reign of Eadgar the Eadgar the 
Peaceful, which began in 958. The growth of a real national ^^'^^*^' ^ss. 
unity was now complete; the consolidated Kingdom of Eng- 
land was made not only in fact but in name, "Wessex has 
grown into England, England into Great Britain, Great Brit- 
ain into the United Kingdom, the United Kingdom into the 
British Empire." * 

With the triumph of Ecgberht began the work of consolida- Work of 
tion which occupied nearly a century and a half in its comple- *^°^^ ^*'°°' 
tion. In that process local kingship became extinct, and the 
primitive states were finally incorporated with Wessex, — they 

^ Under E^dwine, E. Chron., a. Hoveden, preface to vol. i, Ixxxix, 

617. Rolls Series. 

' The Mercian supremacy was ' "Ecgberhtus gratii Dei Rex 

broken by the West Saxons in 754 Anglorum." Codex Diplomaticus 

upon the field of Burford. E. Chron. Mvi Saxonici, i, 287. 

a. 752. From 752 to 848 the entries * Freeman, Norman Conquest, i, 

of the English Chronicle are wrong 16. 
by two years. See Stubbs, Roger of 



6o 



THE AMERICAN CONSTITUTION 



[Ch. 



Ancient state 
becomes mod- 
ern sbire. 



State assem- 
bly survives 
as shire-moot. 



Germs of jury 
system and 
representative 
system. 



ceased to exist as states and became shires. And as the prim- 
itive states thus descended in status, their own shires necessa- 
rily descended in the same way, — they ceased to be shires and 
became hundreds. Thus it may be assumed, as a general prin- 
ciple, "that the state of the seventh century became the shire 
of the tenth, while the shire of the seventh century became the 
hundred of the tenth." ^ The use of the word "shire" in the 
enlarged and modern sense seems to have been introduced dur- 
ing or shortly after the reign of Ecgberht; but the name of the 
hundred does not occur until the laws of Eadgar,^ in whose 
time the arrangement of the whole kingdom in shires was prob- 
ably completed. After that event the consolidated kingdom 
is, in fact, a mere aggregation of shires, whose governments 
represent the entire local machinery of the Constitution. Or, 
to state the matter in another form, now the kingdom forms 
a new whole, of which the shires have sunk to be mere adminis- 
trative divisions. But in descending to the status of a shire, the 
primitive state preserved substantially all its powers as a self- 
governing community. While the tribal king has passed away, 
and his place has been filled by the ealdorman, who stands in the 
government of the shire as the deputy of the national king, the 
popular assemblies of the primitive state all survive as parts 
of the shire system. The primitive state assembly is the folk- 
moot, the highest popular court of the shire, and as such it 
retains some traces of the ancient nationality. It survives as 
the shire court of the modern shire, while the primitive shire 
court survives as the hundred court of the consolidated king- 
dom, the ordinary law court in which cases are heard in the 
first instance. Beneath the hundred courts stand the tun- 
moots, the governing bodies of the village communities or 
townships. In the organization of these local courts the funda- 
mental Teutonic principle is preserved intact; the adminis- 
tration of law, as well as political administration, is vested in 
an expanding series of popular assemblies composed of the 
qualified freemen whose interests are directly involved. In 
these popular assemblies of the hundred and the shire the cus- 
tomary law, the jury system, and its twin brother, the repre- 

1 See essay upon the "Anglo- * Eadgar, i, Constitutio de hun- 

Saxon Courts of Law," by Henry dredis, 
Adams, in Essays in Anglo-Saxon 
Law, 19. 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 6l 

sentative system, were born and nurtured. The earliest mani- 
festation of the representative principle appears in the form of 
the reeve and four selected men, who represent the township 
in the courts of the shire and the hundred.^ In the shire 
court the reeve and four men appeared for each township, the 
twelve senior thegns for each hundred. The shire court was, 
therefore, not only a popular but a representative assembly, 

— a county parliament in which each township and hundred 
appeared in the person of its representatives. As all other 
methods of trial except trial by jury gradually fell into disuse, 
and as the king's courts held in the shires were gradually 
relieved of all fiscal and administrative work, the county par- 
liaments, which were originally convened to meet the itinerant 
justices, were slowly transformed into the modern courts of Modem courts 
assizes, in which the itinerant justices still preside, but in which assize. 
the general assembly of the shire is represented only by the 

grand and petty jurors summoned by the sheriff for the dis- 
patch of the civil and criminal business to be disposed of.^ 
Such is the historical origin of the Old -English system of local 
self-government as embodied in the township, the hundred, and 
the shire, a system which is to-day the political substructure of Political sub- 
every state in the American Union. In the words of Tocque- ^^^^^ ° 
ville: " In America ... it may be said that the township was state. 
organized before the county, the county before the state, the 
state before the Union." ^ It maybe stated as a general rule 
that the English colony in America, like the English state in 
Britain, represented an aggregation of counties, and that each 
county represented an aggregation of townships. The hundred 

— the intermediate division between the township and the 
county — appeared in the structure of some of the colonies, 
but being unnecessary to the local wants of the new land, it 
passed out of view. The hundred existed in Virginia and Mary- 
land, and maybe elsewhere.^ 

^ This fact, "left questionable in dicature and the Origin of Juries." 
the laws, is proved by the later * Democracy in America, i, 49. 

practice." Stubbs, Const. Hist., {, * As to its history in Virginia, see 

115. See also Bigelow, History of "Local Institutions of Virginia," 

Procedure, 133. Ingle, Johns Hopkins Studies, 3d 

* Upon that difficult subject, see series, ii-iii, 41. "A Ty thing- man 

Taylor, The Origin and Growth of in each manor, a constable in each 

the English Constitution, i, 314, Hundred." Bacon, Laws of Mary- 

" Development of the Itinerant Ju- land, 1638. 



62 



THE AMERICAN CONSTITUTION 



[Ch. 



Old-English 
central organ- 
ization. 



Elective 
kingship. 



Thus it appears that after the work of consoHdation was 
completed, the substructure of the Old-EngHsh Commonwealth 
consisted of the shire system, each shire representing an aggre- 
gation of hundreds, and each hundred an aggregation of town- 
ships. Upon that solid foundation, which has never been 
undermined, rested a weak and loosely organized system of cen- 
tral government represented by the king and the witenagemot. 
It is generally admitted that the Teutonic tribes that invaded 
Britain were non-monarchical. As conquest advanced, and as 
definite districts of country were permanently settled, and 
as the various groups felt the need of drawing together under 
a permanent leadership, the ealdorman or heretoga, war-leader, 
was advanced to the dignity of a king who could represent in 
his person the unity of a new national life.^ The name of the 
son was associated with that of the father as a recognition of 
the hereditary principle ; and in order to impart dignity to the 
person of the new king, fable at once traced his descent in an 
unbroken line from Woden. But the recognition of the heredit- 
ary principle was attended and modified by the older principle 
of election. The right to the throne might be vested by the 
original choice in a single royal house, but the question as to 
which member of that house should receive the succession when 
a vacancy occurred was one which the witan alone could deter- 
mine. No matter who succeeded to the throne, the theory was 
that he succeeded by virtue of an election; he was '^gecoren and 
dhafentdcyninge,'' — elected and raised to be king.^ The witan, 
which possessed the power to elect the king, possessed also the 
correlative right to depose him whenever his government was 
not conducted for the good of his people.^ As the process of 
aggregation advanced, the institution of kingship grew with 
each extension of territory. As an heptarchic king rose in 
power and importance above the petty royal head of a prim- 
itive state, so did the king of all the English rise in power and 
importance above an heptarchic king. Thus overshadowed. 



* "The word rice I take to mark 
the change from ealdormanship to 
kingship." Freeman, Norm. Conq., 
if 392, Appendix K. 

* "The possession of Woden's 
blood was the indispensable condi- 
tion of kingship." Kemble, Saxons 



in England, i, 329; ii, 215, 219. 

* As to the formal and regular 
deposition of Alchred of Northum- 
bria, see E. Chron., a. 755; Flor., 
Wig., a. 755- 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 63 

provincial royalty finally died out, after lingering in North- Provincial 
umbria until the death of the last Danish king in qs4. A few ^°yf^ 

. T^ , , , <iied out. 

years after that event, Eadgar succeeded to the threefold 
sovereignty of the West Saxons, Mercians, and Northumbrians, 
and thus became the first sole and immediate king of all the 
English.^ Every royal house to which conquest had given 
birth was now extinct except the West Saxon House of Cerdic, 
— as the fittest it survived. 

In the early kingdoms in which the Teutonic settlers origin- Constitution 
ally grouped themselves in Britain, the state assembly appears f emor'^^°" 
as the folk-moot, the meeting of the whole people in arms; in 
the larger aggregates known as heptarchic kingdoms the na- 
tional assemblies are not folk-moots at all, but witenagemots; 
they are not great popular assemblies of an entire nation, but 
small aristocratic assemblies composed only of the great and 
wise men of the land. In the absence of the principle of repre- 
sentation in the higher sphere of politics, it is easy to under- 
stand how an originally democratic assembly, into which the 
magnates of the land entered as dominating factors, would 
naturally shrink up into a narrow aristocratic body composed 
of the magnates only, wherever the extent of the territory to be 
traversed rendered it difficult for the mass of the people to 
attend. The results of that principle are practically the same, 
whether worked out in England or Achaia.^ As the process of England 
aggregation was attended by an increase in the power of the ^^^ Achaia. 
king and thegnhood, and by a consequent depression of the pop- 
ular power, without the formal exclusion of any class, the 
mass of the people simply ceased to attend assemblies in whose 
deliberations they could take but a subordinate part. Thus, 
through a perfectly natural process, the folk-moot, the meeting 
of the people, was converted into a witenagemot, a meeting of 
the wise, in which were considered all matters involving the 
general good. Such is the history of the witenagemot, whether 
considered as a supreme council of an heptarchic state, or as 
the supreme council of the whole English nation when finally 
united in a single consolidated kingdom. The weakness of the 
Old-English Commonwealth was in its superstructure. The 

^ "It was not till Eadgar 's day tory of the English People,!, g6. 
that the name of Britain passed into ^ Cf . Freeman, Comparative Poli" 

the name of Engla-land, the land of tics, v, "The Assembly." 
Englishmen, England." Green, His- 



64 



THE AMERICAN CONSTITUTION 



[Ch. 



Lack of cohe- 
sion between 
central and 
local powers. 



Feudal tend- 
ency to dis- 
ruption 
checked by 
Godwine. 



Norman duchy 
and its dukes. 



national unity that grew up through a premature and imperfect 
concentration of powers around a single throne was constantly 
strained and weakened by the counter-force of the feudal and 
provincial spirit. The greatest defect in the political system as 
a whole arose out of the looseness of the tie that bound the cen- 
tral powers of the state to the local machinery of the Constitu- 
tion. There was a want of a strong organic connection between 
the King and the Witan, as the representatives of the nation, 
and the system of provincial organization embodied in the 
shires, — a want never to be supplied until representatives 
from the local communities finally drew together in an assem- 
bly which became coordinate with the King's Council. The 
political history of the century that intervenes between 
Eadgar the Peaceful and William the Conqueror (958-1066) is 
the history of the struggle between the power of the nation as 
embodied in the Crown and the provincial power asserted by 
the great ealdormen, who were ever striving in the direction of 
feudal isolation. In that struggle the defensive power of the 
nation was broken ; the spirit of disunion and disorder that was 
ever assailing the foundations of the throne was equally ready 
to paralyze the national arm in the presence of the invader. 
The feudal tendency to disruption does not prevail simply 
because the great Earl Godwine, who is striving to win the 
crown for his own house, is strong enough to counteract it. 
Upon his death (1053) the earldom of the West Saxons passed 
to his son Harold, who for twelve years stood forth as the real 
master of the realm. But when, upon the death of the child- 
less Eadward, Harold was elected by the Witan to the vacant 
throne, it was impossible even for him to bind together the 
broken power of the kingdom, with the great earldoms of 
Merciaand Northumbria in the hands of his two jealous rivals, 
Eadwine and Morkere, whose treacherous policy really 
opened the way to the Norman Conquest. "When Harold, 
imitating the Capetians, raised himself to the throne, the 
natural consequence would seem to have been that England 
should share the fate of France. To have prevented this is 
the one great service which William rendered to mankind." ^ 
The history of the Norman duchy begins with the planting 
in 91 1 of the Danish colony at Rouen by Rolf or RoUo, who in 
* North American Review for July, 1874, 238. 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 65 

the next year received from Charles the Simple the grant of the 
district on both sides of the Seine which he had already won 
by the sword. If any records ever existed touching the details 
of the settlement or touching the legal and political institutions 
planted by its founders in Gaul, they have utterly perished. 
There are no chronicles, no charters to guide us ; of the internal 
organization of the Norman duchy in the early days of its 
history we know absolutely nothing. It seems, however, to be 
clear that the Norman dukes from the very beginning ruled 
not as absolute sovereigns, but with the advice of some kind of 
an assembly or council of great men.^ As the time for the con- 
quest of England approaches, the Duke consults or professes 
to consult, the magnates of his realm, lay and spiritual, the 
optimates, the proceres of Normandy. The court he holds may 
not yet be called a court of his tenants-in-chief, but it is an 
assembly of magnates who are his vassals. It also appears that An assembly 
in the lower courts the lord of the court is not the only judge ; he °^ °iag°ates. 
is surrounded. by doomsmen.^ It is in the reign of the third 
duke, Richard the Fearless, that we can trace the beginnings of 
the Norman nobility, whose members derive their status as 
nobles either from ancient Norse descent from the companions 
of Rolf or through connections, legitimate or illegitimate, with 
the ducal house. The baronage which thus grew up held their 
lands of the Duke upon terms of feudal obligation, and by his 
strong hand alone were they held in subjection.^ Over this 
turbulent baronage, William the Bastard, while yet a minor, 
was called to rule ; and his first important victory was won in 
crushing a widespread revolt headed by some of the greatest 
nobles of his own dukedom. After such an experience at home, 
William was able to triumph over Harold because the realm 
of England was torn by a feudal tendency to disruption which 

^ Extreme views on this subject sides, but three abbots, nine named 

are marked at one end by Palgrave laymen, and many others are the 

(^Normandy and England, ii, 258 sq.) judices kujus placiti. Neustria Pia, 

and at the other by Steenstrup (/«- 311. 

ledning i Normannertiden. Copen- * Richard the Fearless is re- 

hagen, 1876). There is a French garded as the founder of Norman 

translation of the latter in the Bui- feudalism. Normandy and England, 

letin de la Societe des antiquaires de ii, 534. See also Waitz, Gottingische 

Normandie, x, 185. Gelehrte Anzeigen, Nachrichten, Feb- 

* In a suit heard in 1086, in the ruary 14, 1866, 95, 96. 
court of Robert of Bellgme, he pre- 



66 



THE AMERICAN CONSTITUTION 



[Ch. 



Fall of Harold 
and triumph 
of William. 



William 
a national 
king as well 
as feudal 
conqueror. 



Law of 
the land 
and ancient 
assemblies 
preserved. 



gave him the victory at Hastings: the "main forces of North- 
umberland and North Western Mercia came not to King 
Harold's Muster." With the fall of Harold and the triumph of 
William, the royal power passed into the hands of one of the 
wisest and sternest of statesmen. By his inflexible policy the 
tendency to disruption was checked, the four great earldoms 
were abolished, and a real national unity at last grew up as the 
old provincial jealousies were gradually crushed out beneath 
the yoke of the foreign kings. Under the heel of the stranger 
the English nation finally awoke to a sense of its oneness. 

Nothing could have been more consummate than the policy 
through which William checked feudal disintegration in Eng- 
land by establishing a strong central government of which hie 
was the directing force. His first move was to make himself 
a national king, the lawful successor of Eadward through an 
election by the Witan.^ By claiming to be the heir of Eadward, 
he connected himself directly with the line of national kings 
that had gone before him ; by insisting upon his elevation to the 
royal office by the choice of the Witan, he obtained the highest 
confirmation of his title that could be drawn from the ancient 
Constitution. By means of these outward forms William pro- 
claimed the fact, not only to the conquered English but to his 
Norman followers, that he would rule in his new realm, not as 
a mere feudal conqueror, but as a national king. The sum of 
royal power that thus accrued to William by virtue of the 
ancient Constitution was augmented by the addition of every 
feudal right that tended to increase the royal revenue and to 
strengthen the royal authority, while every principle was 
eliminated that tended to promote the disruptive tendencies 
of feudal institutions. As King of the English, William was care- 
ful to preserve the law of the land as it stood in the days of 
King Eadward, and along with it those ancient assemblies of 
the shire and the hundred in which it had been immemorially 
administered.'^ As feudal lord he firmly established the doc- 



* In the church of Eadward, on 
Christmas Day, amid the shouts of 
"Yea, yea," from his new English 
subjects, William, after taking the 
oaths usually administered to an 
English king, was crowned and 
anointed by the hands of the 



Northumbrian prelate, who, less 
than a year before, had poured the 
consecrating oil upon the head of the 
mighty chief of the House of God- 
wine. Cf . Green, Hist, of the English 
People, i, 115. 

* " Requiratur hundredus et com- 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 67 

trine that the King was the supreme landlord, and that all 
lands were held by grant from him. In his time the folkland 
became terra regis. All landholders thus became tenants of the 
King, and under William's successors the feudal revenue of the 
Crown from that source was enormous. It was William's pol- 
icy to introduce but one side of feudalism, — to accept it as a Feudalism 
system of tenure, but not as a system of government. He was ^ ^ system 
therefore careful to prevent the accumulation in the hands of ° ^°^^' 
the great feudatories of any considerable number of contigu- 
ous estates ; he was also careful to require from all freeholders 
an oath that bound them to the King by the double tie of 
homage and allegiance. To every landowner the Conqueror 
stood in the double relation of landlord and sovereign. 

When the crown passed to William the Red, the strength of WilKam 
his father's work was put to the test by a great revolt of the ^^^ ^^^' 
chief men of Norman blood throughout England. The new 
king, thus deserted by the bulk of the greater nobles, at once 
fell back upon the loyalty of his English subjects, with whose 
aid the revolt was crushed and the power of the baronage 
trampled under foot. The royal authority, thus left unchecked 
by the counter force of the feudal power, became in the hands of 
the new minister, Ranulf Flambard, an irresponsible despotism. Flambard and 
The system of feudal law he is said to have worked into a de- t^^^ growth of 
finite form was applied to all feudatories, temporal and spiritual . 
By his policy the local courts of the shire and the hundred 
were turned into engines of extortion; in the words of the 
Chronicle, "He drove and commanded all his gemots over all 
England." ^ When William the Red died, the Witan, who were 
then near at hand, chose his brother Henry as king.^ The 
promises contained in Henry's coronation oath, whose exact Henry's 
words are still preserved, were amplified into a comprehensive coronation 
charter of liberties, which stands not only as the immediate 
parent of the Great Charter of John, but as the first limitation 
imposed upon the despotism established by the Conqueror and 
carried to such a height by his sons.' Upon the ruins of the 

itatus, sicut antecessores nostri * By Henry's charter were re- 

statuerunt." Statutes of William, § 8. stored to the people the laws of 

^ Chron. Petrib., 1099. King Eadward, which symbolized 

* Chron. Petrib., iioo. As to the the ancient Constitution, with such 

election, see William of Malmes- amendments as the Conqueror had 

bury, G. R., v, § 393. made. "Legem Edwardi regis vobis 



68 



THE AMERICAN CONSTITUTION 



[Ch. 



The Magnum 
Concilium. 



The Curia. 



The Justiciar. 



Stephen 
and anarchy. 



A project 
of reform. 



greater feudatories, Henry raised up a set of lesser nobles, from 
whose ranks he selected the sheriffs and judges who were to 
aid him in the work of administrative reform. At the begin- 
ning of the Conqueror's reign those who composed the Old- 
English national assembly known as the Witan were a body of 
Englishmen ; by the end of his reign that body had gradually 
changed into an assembly of Normans known as the Magnum 
Concilium, in which an Englishman here and there held his 
place. ^ As the King's thegns became his tenants-in-chief, the 
ancient assembly of wise men gradually became the King's 
court of feudal vassals, whose right to exercise power was made 
to depend practically upon the King's pleasure.'^ The inner circle 
of the Magnum Concilium came to be known as the Curia Regis, 
which, during the Norman reigns, drew to itself the entire cen- 
tral administration of justice and finance. During the reign of 
Henry, Bishop Roger of Salisbury became Justiciar, and as such 
he reorganized the new fiscal and judicial system embodied in 
the Curia. From the reign of Henry I, the Curia, whose method- 
ical procedure imposed upon the despotic powers of the Crown 
the restraints at least of administrative routine, can be distinctly 
traced as a supreme court of justice containing specially ap- 
pointed judges, and presided over by the King or Justiciar, who 
is occasionally distinguished by the title of "summus" or "capi- 
talis.'" Under the guidance of Bishop Roger, the whole judicial 
and financial organization of the kingdom, both central and 
local, was reorganized and remodeled. 

After the accession of Stephen, England, for the first and 
last time in her history, sank into a state of feudal anarchy 
which the Conqueror by his far-sighted policy had striven to 
prevent. But the relapse was only momentary; the system 
of central government the Conqueror had devised emerged 
intact upon the making in 1153 of the Treaty of Wallingford, 
in which Stephen recognized as his heir Henry, the son of 
Matilda (daughter of Henry I), who had married Geoffry, called 
Plantagenet, son of Count Fulk of Anjou. The treaty was 
attended by an elaborate project of reform, which contem- 

reddo eum illis emendationibus * A memorable part of his policy 

quibus pater meus earn emendavit consists of his order for the holding 

consilio baronum suorum." Art. 13. of the courts of the shire and hun- 

1 Freeman, Norm. Cong., v, 277; dred. For thetext see i'tedero, 4, 12; 

Select Charters, 17. Select Charters, 104. 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 69 

plated among other things the resumption of all royal rights 
that had been usurped by the baronage, the restoration of 
estates taken from their lawful owners, the razing of all un- 
licensed castles, the banishment of the foreign mercenaries 
from the country, and the appointment of sheriffs to reestablish 
justice and order. ^ Thus ended the reign of the fourth and last 
Norman king. During those four reigns England was given 
a new system of central government whose extraordinary 
powers were vested in the Magnum Concilium, and whose 
ordinary powers were vested in its inner circle known as the 
Curia Regis, which has given birth not only to every court of 
law or equity in which justice is administered in the King's 
name, but also to the entire administrative machinery of the Origin of 

Constitution. The new system of central government thus administrative 

■^ ° , machinery, 

built up as a superstructure by the four Norman kings rested 

upon a substructure they did practically nothing to disturb, — 
a substructure represented by the ancient Teutonic system of 
local self-governing communities known as the township, the 
hundred, and the shire. For a time the superstructure and the 
substructure had no organic connection with each other. Not 
until the Angevin period is reached, not until the reign of 
Henry II and his sons, is there anything like a growing- together The period 
of the Norman system of central administration and the ten- °^ fusion. 
acious machinery of Old-English local freedom embodied in 
the organizations of the township, the hundred, and the shire. 
And the same agencies which, during the Angevin reigns, 
brought about the amalgamation of the new central adminis- 
trative system and the ancient local machinery, also brought 
about a union between the new system of royal law, radiating Royal and 
from the Curia Regis, and the ancient system of customary or p^p^^^ ^^^• 
popular law as administered in the local courts. ^ The accession 
of Henry of Anjou marks the beginning of the period of fusion 

^ For the treaty itself see Ste- clearly pointed out the fact that in 

phen's Charter, printed in Rymer, the study of Teutonic law, the dis- 

i, 18. The entire scheme of reform tinction must be sharply drawn be- 

which attended it can only be gath- tween such law as flows from a royal 

ered from the contemporary histori- or official source, and such as flows 

ans. See R. de Monte, 1 153; Hen. from a customary or popular source. 

Hunt, fol. 228; Gervase, 1375; Will. As to Sohm's views on that subject, 

Newberg, i, 30; Roger of Hoveden, see North American Review for July, 

i> 212. 1874, p. 222. 

* A great German jurist has 



70 



THE AMERICAN CONSTITUTION 



[Ch. 



Henry II 
and the reign 
of law. 



Constitutions 
of Clarendon, 
1 164. 



Practice 
of summons. 



Growth 
of judicial 
business. 



between the Norman superstructure and the Old-English 
substructure whose final outcome was the modern Constitution 
endowed with the strongest elements of both. In that process 
of fusion was created the system of law and equity that now 
prevails in England, in every state of the American Union, and 
in the federal courts of the United States. 

The death of Stephen opened the way for Henry II, "whose 
statesmanlike activity, whose power of combining and adapt- 
ing that which was useful in the old systems of government 
with that which was desirable and necessary under the new, 
gives to the policy which he initiated in England almost the 
character of a new creation." ^ The full scope of his policy was 
not only to establish the reign of law, but to reduce all orders 
of men to a state of equality before the same system of law. 
That effort brought him into sharp conflict with the clerical 
order headed by Becket, the outcome of which was embodied in 
the Constitutions of Clarendon,^ a concordat that regulated 
from that time the relations of the church with the state. In 
reorganizing the central system, Henry gave definite form to 
the Great Council, now summoned at regular intervals as a per- 
fect feudal court, — an assembly of archbishops, bishops, 
abbots, priors, earls, barons, knights, and freeholders.' The 
writs of summons were of two kinds: first, such as were spe- 
cially addressed to those great personages whose presence was 
necessary, and who were summoned as a matter of course; 
second, such as were addressed generally to the sheriff of each 
shire requiring him to summon in a body the lesser landowners. 
In reorganizing the Curia Regis, its financial aspect was over- 
shadowed by its development as a judicial tribunal. The 
growth of the judicial business of the Curia was so great that 
in II 76 its staff had increased to eighteen justices, who were 
apportioned to the six circuits into which the kingdom was 
divided. In 11 79 a new arrangement was made, and out of a 
larger staff, charged with exchequer business and the work of 
the circuits, six justices were selected, and "these six are the 
justices constituted in the Curia Regis to hear the complaints of 
the people." ^ This limited tribunal, which from the year 1179 



* Stubbs, Const. Hist., i, 336. 

* See R. Diceto, c. 336; Gervase, 
c. 1385; Bigelow, Hist, of Procedure, 
52, 53. 



* Select Charters, 22, 23. 

* "Isti sex sunt justitiae in curia 
regis constituti ad audiendum cla- 
mores populi." Benedictus, i, 239. 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 71 

held regular sessions "in banco,** ^ probably represents the 
beginning of the King's Bench as a distinct tribunal. By the Beginning of 
Assize of Clarendon, 1 166, called the most important document "^ ^ Bench. 
of the nature of law or edict that has appeared since the Con- 
quest,* whose enforcement was committed to the justices 
itinerant, the system for the presentation of criminals by grand 
juries was remodeled, and every franchise opened to the visits Grand and 
of the sheriffs and justices.' The trial jury, a subject with an *^"^ ^^^' 
intricate history, is the product of the union of Old-English and 
Norman elements, the former supplying the germ in the form 
of community witnesses, the latter supplying the royal writ 
process through which that germ was finally developed into the 
trial jury of modern times. The growth of that institution was 
greatly advanced by Henry II, who introduced into England, 
under the name of assizes, a new species of the inquest of proof 
known as the recognition. To the student of English law, the 
Great Assize, and the assizes of novel disseisin, mort d'ancester, 
and darrien presentment, the leading recognitions in civil mat- 
ters, are the most familiar. In England only was the jury of 
proof transformed into the jury of judgment. There trial by 
jury gradually superseded all other methods of trial; as the fit- 
test it survived.^ The Angevin rulers as national kings retained 
the right to summon, under the lead of the sheriffs, the ancient 
forces of the shire ; as feudal lords they gained the right through 
the growth of tenures to call upon the feudal army to perform 
the military service due from their lands. By his Assize of 
Arms, 1 181, Henry undertook to reorganize and renew the Assize of 
ancient force as a body safer and more trustworthy for national ^^' ^^^^' ^ 
defense than the feudal host.^ As the fruits of feudal tenures 
were an addition or supplement to the older revenues derived 
from the ancient system, so the feudal army was an addition or 
supplement to the older constitutional force of the land. In 
order to raise money with which to hire mercenaries to be 
employed in the meditated expedition against Toulouse,® 

* As to the "Justiciarii sedentes * Upon the whole subject, see 
in banco," see Glanvill, lib. 2, c. 6, Taylor, The Origin and Growth of the 
lib. 8, c. i, and lib. 11, c. i; Bene- Eng. Const., i, 314-334. 

dictus, ii, preface, Ixxv, Rolls Series. * Benedictus, i, § 278; Select Char- 

* Select Charters, p. 143. ters, p. 153. 

* Sir ]. F. Stephen, History of the • "Tolosam hello aggressurus," 
Criminal Law of England, i, 68; Pal- etc., John of Salisb. (Ep. 145), i, 223. 
grave, Commonwealth, i, 213. 



72 



THE AMERICAN CONSTITUTION 



[Ch. 



Scutage, 1 159. 



Taxation of 
personal pro- 
perty, 1 188. 



Taxation and 
representation. 



Richard I 
and taxation. 



Henry dealt a serious blow to the feudal power by establishing 
in 1 1 59 the institution of scutage or shield-money, a pecuniary 
commutation for personal service in the host. Up to this 
point in Henry's reign, — leaving out of view the receipts from 
the customs, — all taxation fell upon the land, and consisted 
(i) of the ancient customary dues, and the tax on the hide, 
survivals of the Old-English system ; and (2) of the feudal inci- 
dents, and the scutage, or tax on the knigM s fee, — products of 
the new system of military tenures. When the Angevin finan- 
ciers were tempted by the mass of personal property brought 
into existence by the prosperity consequent upon the new 
policy of order and reform, Henry, in 1188, levied a tithe of 
movables to aid the common host of Christendom in retaking 
the Holy Cit}'^ from Saladin, This taxation, for the first time, 
of personal property was a momentous step, because, whenever 
any one was suspected of contributing less than his share, four 
or six lawful men of the parish were chosen to declare on oath 
what he should give.^ In that way the representative principle 
— which first appears in the form of the reeve and four select 
men who represent the township in the courts of the shire and 
hundred — is brought into close contact with the system of 
taxation. In connection with that system the representative 
principle ascends, through three stages, from the lowest to the 
highest functions of government' It is first applied in an hum- 
ble way, through the chosen jurors, to the assessment of the 
tax; it next becomes involved with the granting of the tax; and 
finally it determines the method of its expenditure. The princi- 
ple that taxation and representation are correlative terms — the 
vital principle involved in the separation of the colonies from 
the mother country — dates back to the Saladin tithe of 1 188. 
The system of taxation thus organized by a great statesman 
and financier was so wantonly applied after his death by a 
spendthrift knight-errant as to exhaust its resources. From a 
constitutional standpoint the reign of Richard I is chiefly inter- 
esting in so far as it illustrates the improvements in the system 
of taxation suggested by its constant use, and the oppressions 



* "Et si aliquis juxta conscien- 
tiam illorum minus dederit quam 
debuerit, eligentur de parochia 
quatuor vel sex viri legitimi, qui 



jurat! dicant quantitatem illam 
quam ille debuisset dixisse; et tunc 
oportebit ilium superaddere quod 
minus dedit." Benedictus, ii, 31. 



III.l EVOLUTION OF THE TYPICAL AMERICAN STATE 73 

that arose out of its incessant application to all classes and con- 
ditions of men. In 1192 Richard from his Austrian dungeon 
demanded for his ransom £100,000, double the revenue of his 
kingdom.^ In 1196 it was that the poorer citizens of London 
broke into open revolt at the manner in which the tallage 
was collected ; ^ and two years later a fresh demand for money 
from the baronage led to a revolt in a higher sphere led by the 
patriot Bishop of Lincoln, Hugh of Avalon.^ The nation thus 
oppressed by the grinding weight of the central government 
built up by the Norman and Angevin kings was now organiz- 
ing itself in the ranks of the three estates known as the Clergy, Rise of the 
Baronage, and Commons. The causes that brought about the ^^^ estates, 
establishment of the estate system were general in their opera- 
tion, and in each one of the European countries the result was 
reached at about the same time. The complete establishment of 
the system is generally regarded by the historians as the work 
of the thirteenth century. In the history of the English nation 
the three estates appear as the Clergy, the Baronage, and the 
Commons.^ In the words of the Lords' Report, "In England 
. . . the Clergy have been esteemed one estate, the Peers of the 
realm the second estate, and the Commons of the realm, repre- 
sented in Parliament by persons chosen by certain electors, 
a third estate." ^ The estate system itself consisted of the 
division of the nation into definite classes or orders of 
men; the product of the system was that type of a national 
assembly in which each class or order appeared in person or 
by representatives. 

The death of the childless Richard in April, 1 199, opened the John as a 
way for his brother John, "the worst outcome of the Angevins. *^^^°^*°- 
He united in one mass of wickedness their insolence, their self- 
ishness, their unbridled lust, their cruelty and tyranny, their 
shamelessness, their superstition, their cynical indifference to 
honor or truth. ... But with the wickedness of his race he 

^ Hoveden, iii, 208, 210, 217, 222. * And not, as is often erroneously 

See also preface to Hoveden, iv, stated, as the King, Lords, and Com- 

Ixxxiii, Rolls Series. mons. An argument in favor of that 

* For the history of the rising, see now obsolete theory may be found 

Will. Newb., v, c. 20; R. Diceto, c. in Whitelocke's work on the Parlia- 

691; Hoveden, iv, 5, 6, and preface, mentary Writ, ii, 43. 
iv, Ixxxix. 6 Vol. i, p. 118. 

' See preface to Hoveden, iv, 
Ixxxi; Freeman, Norm. Conq., v, 465. 



74 



THE AMERICAN CONSTITUTION 



[Ch. 



Loss of Nor- 
maady, 1204. 



Council at 
St. Alban's, 
Avigust 4, 
1213. 



Council at 
St. Paul's, 
August 25, 
1213. 



Meeting at 
St. Edmund's, 
November, 
1214. 



Inherited its profound ability. ... In the rapidity and 
breadth of his political combinations he far surpassed the 
statesmen of his time." ^ Fate did much to cripple such a 
monster by depriving him, in 1204, of Normandy, whereby the 
last direct connection of the baronage of England with the land 
of their fathers passed forever away. That severance completed 
the great work that had been steadily going on since the Con- 
quest, the work of building up a united English nation. At the 
head and front of the united nation, which thus arose out of 
the assimilation of the smaller mass of the conquerors by the 
greater mass of the conquered, the baronage — Norman in 
descent, but English in interest and feeling — held its place 
throughout the prolonged struggle in which the Great Charter 
was won. That struggle opened in the summer of 12 13 with 
the refusal of the baronage to follow John to France, upon the 
ground that he was still excommunicated. On August 4, a 
memorable council was held at St. Alban's, to which were sum- 
moned not only the bishops and barons, but also the reeve and 
four legal men as representatives from each township on the 
royal demesne.^ In that meeting the laws of Henry I — the 
embodiment of the laws of King Eadward as amended by 
King William — were brought to the attention of the assembly 
by the Justiciar, Geoffrey Fitz-Peter, and proclaimed as the 
bases on which the liberties of the nation were to be reestab- 
lished.^ In a second gathering of the barons, held at St. Paul's 
in London on the 25th of the same month, Langton produced 
and read the charter of Henry I, which was warmly accepted 
as the basis of national action. Finally in November, 12 14, the 
barons, under the pretext of a pilgrimage, assembled secretly 
at the abbey of St. Edmund for the purpose of casting into 
final form the schedule of liberties they had resolved to force 
upon the King. Early in January, 12 15, the united baronage 
met in arms, and on the 24th of May London threw open her 



^ Green, Hist, of the Eng. People, 
i, 229-230. 

* "In crastino autem misit rex 
litteras ad omnes vicecomites regni 
Angliae preecipiens ut de singulis 
dominicorum suorum villis quatuor 
legales homines cum praeposito apud 
Sanctum Albanum pridie nonas Au- 



gust! facerent con venire." M. Paris 
(ed. Watts), 239. 

' "Quatenus leges Henrici avi 
sul ab omnibus in regno custo- 
direntur et omnes leges iniquse 
penitus enervarentur." M. Paris, 
ibid. 239. 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 75 

gates to the patriot host, and Exeter and Lincoln followed her 
example. In order to save himself from the final humiliation of 
unconditional surrender, John attempted to conceal the real 
nature of the submission about to be made under the cloak of 
a negotiation. With that end in view he invited the barons to a 
conference on an island in the Thames between Windsor and 
Staines, near the meadow of Runnymede. On June 15 the Great Charter 
delegates met on that island in view of the opposing forces, and ^'f^j^i-^™* 
after going through the form of a negotiation, agreed upon the 
Great Charter of liberties in a single day. Though issued in the 
form of a royal grant, it was in substance a treaty or compact ^ 
entered into between the royal authority on the one hand and 
the nation marshaled in the ranks of the three estates on the 
other. The immortal part that has survived is embodied in 
the judicial clauses out of which has grown what English and 
American lawyers call "due process of law." The 39th chapter Chapter 39, 
provides: Nullus liber homo capiatur, vel imprisonetur, aut "<i^^pyo°ess 
disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo de- 
struatur, nee super eum ibimus, nee super eum mittemus, nisi 
per legale judicium parium suorum vel per legem terrae. "No 
freeman shall be taken, or imprisoned, or disseised, or out- 
lawed, or exiled, or in any wise destroyed ; nor shall we go upon 
him, nor send upon him, but by the lawful judgement of his 
peers or by the law of the land." That chapter was so amended 
in the reissues of Henry III as to read, "No freeman shall be 
taken or imprisoned or disseised of his freehold, or liberties, or 
free customs, or outlawed, or exiled," etc. It was settled long 
ago that the guarantee of trial by jury was not involved in the Trial by jury 
phrase "the lawful judgement of his peers," and that "by the i">t guaranteed 
law of the land " was guaranteed at most judgment by some of 
the contemporary methods of trial, such as ordeal, battle, or 
compurgation.^ And yet the chapter in question became "a 

* M. Boutmy, in his comments on elle serait en tach^e d 'irregularity et 

the "Constitution Anglais," has de violence; c'est un compromis ou 

this to say: "Les pactes sont au un pacte." Etudes de droit constitu- 

nombre de trois: la grande Charte tionnel, pp. 39-41. 

(1215) . . . Le charactere de cet ' The whole matter is well put 

acte est ais6 a definir. Ce n'est pas by McKechnie, Magna Carta, 158 

precisement un traite, puis qu'il sq.,4S^sq. Seealso Hurtadop. Cali- 

n'y a pas ici deux souverainet^s fornia, no U. S. 529. "The expres- 

legitimes ni deux nations en pre- sion 'per legem terra' simply re- 

sence; ce n'est pas non plus une loi; quired judicial proceedings, accord- 



76 



THE AMERICAN CONSTITUTION 



[Ch. 



Broad con- 
struction. 



Chapter 39 
embodied in 
state constitu- 
tions. 



sacred text, the nearest approach to a 'fundamental statute,* 
that England has ever had." ^ In each age it has been inter- 
preted as a living guarantee of fundamental rights according 
to the needs of that age. In that way it was given a broad 
construction by the jurists and statesmen of the seventeenth 
century during the constitutional struggles with the Stuarts.^ 
That construction, as it finally became fixed in the Commen- 
taries of Blackstone, passed at the end of the Revolutionary 
War into the original constitutions of the thirteen states as a 
part of the text of chapter 39, reproduced in nearly all of them. 
It appears in the following forms in the state constitutions of 
1776. In the act of that year, continuing the charter of Con- 
necticut of 1662 as the organic law of the state, it is provided: 
"That no man's life shall be taken away: no man's honor or 
good name shall be stained: no man's person shall be arrested, 
restrained, banished, dismembered, nor any ways punished: 
no man shall be deprived of his wife or children: no man's 
goods or estate shall be taken away from him, nor any ways 
indamaged under the colour of law, or countenance of au- 
thority; unless clearly warranted by the laws of this state." 
In Maryland's constitution of the same year it is provided: 
"That every freeman, for any injury done him in his person 
or property, ought to have remedy, by the course of the 
law of the land, and ought to have justice and right freely 
without sale, freely without any denial, and speedily without 
delay, according to the law of the land." In North Carolina's 
constitution of the same year it is provided : "That no freeman 
ought to be taken, imprisoned, or disseized of his freehold, 
liberties, or privileges, or outlawed, or exiled, or in any manner 
destroyed, or deprived of his life, liberty, or property, but by 
the law of the land." In Pennsylvania's constitution of the 
same year it is provided : " Nor can any man be justly deprived 
of his liberty except by the laws of the land, or the judgment of 
his peers." In Virginia's constitution of the same year it is 
provided: "That no man be deprived of his liberty, except by 

ing to the nature of the case; the ^ Pollock and Maitland, Hist, of 

duel, ordeal, or compurgation, in English Law, 2d ed., i, 173. 
criminal cases, the duel, witnesses, * Cf. McGehee, Due Process of 

charters, or recognition, in pro- Law, 6. 
perty cases." Bigelow, History of 
Procedure, 155, n. 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 77 

the law of the land or by the judgment of his peers." In Ver- 
mont's constitution, drafted in 1777 and affirmed in 1779, it is 
provided : " Nor can any man be justly deprived of his liberty, 
except by the laws of the land or the judgment of his peers." 
In South Carolina's constitution of 1778 it is provided: "That 
no freeman of this state shall be taken or imprisoned, or dis- 
seized of his freehold, liberties, or privileges, or outlawed, 
exiled, or in any manner disseized or deprived of his life, 
liberty, or property, but by the judgment of his peers or by 
the law of the land." In Massachusetts' constitution of 1780 
it is provided that " no subject shall be arrested, imprisoned, 
despoiled, or deprived of his property, immunities, or privi- 
leges, put out of the protection of the law, exiled, or deprived 
of his life, liberty, or estate, but by the judgment of his peers, 
or the law of the land." In the New Hampshire constitution 
of 1784 the same provision is repeated, word for word. 

When the Fifth Amendment was adopted, the essence of Chapter 39 
chapter 39 passed into the Federal Constitution in this form : t^^^*^^ '°j 
"No person shall be . . . deprived of life, liberty, or property, ment, 
without due process of lawJ' In construing that clause the 
Supreme Court has said: "The words 'due process of law' 
were undoubtedly intended to convey the same meaning as 
the words *by the law of the land' in Magna Carta. Lord 
Coke, in his commentary on those words,^ says, they mean 
due process of law. The constitutions which had been adopted 
by the several states before the formation of the Federal 
Constitution, following the language of the Great Charter more 
closely, generally contained the words, 'but by the judgment 
of his peers, or the law of the land.' " ^ When at a later day the 
essence of chapter 39 passed into the Fourteenth Amendment and in the 
in this form, "nor shall any state deprive any person of life, 
liberty, or property, without due process of law," itwrought 
a revolution in American jurisprudence. As the Supreme 
Court has expressed that fact in a leading case: "While it has 
been a part of the Constitution, as a restraint upon the power 
of the states, only a few years, the docket of this Court is 
crowded with cases in which we are asked to hold that state 
courts and state legislatures have deprived their own citizens 

* 2 Inst. 50. 

* Murray v. Hoboken Land and Improvement Co., 8 How. 272. 



Fourteenth. 



78 



THE AMERICAN CONSTITUTION 



[Ch. 



of life, liberty, or property without due process of law." ^ Since 
that declaration was made in 1877 the volume of serious liti- 
gation in the Supreme Court, involving those very questions, 
has continued to grow until it may be said, without exaggera- 
tion, that the main business of that Court now is to construe and 
enforce chapter 39 of the Great Charter as a national limitation 
upon the action of state courts, state executives, and state leg- 
islatures. In the case just cited the Court said: "The prohibi- 
tion against depriving the citizen or subject of his life, liberty, 
or property, without due process of law, is not new in the 
constitutional history of the English race. It is not new in 
the constitutional history of this country, and it was not new 
in the Constitution of the United States when it became a part 
of the Fourteenth Amendment, in the year 1866. The equi- 
valent of the phrase 'due process of law,' according to Lord 
Coke, is found in the words 'law of the land,' in the Great 
Charter, in connection with the writ of habeas corpus, the trial 
by jury, and other guarantees of the rights of the subject 
against the oppression of the Crown." 
A manifest The great Court has, however, fallen in that case, as in the 

historical error, preceding case of Murray v. Hoboken Land and Improvement 
Co., into a manifest historical error when it assumes that the 
due process of law clause, as it appears in the Fifth and Four- 
teenth Amendments, should be construed as it was understood 
in England in 1632 when Coke's " Second Institute " — a com- 
mentary on Magna Carta — was published. The fact cannot 
be ignored that Coke, who as a Privy Councillor sat in the Star 
Chamber, died September 3, 1634, while the entire code of 
Star Chamber law and High Commission law was in full force. 
During the one hundred and forty-two years that intervened 
between Coke 's death and the severance of the English colon- 
ies in America from the mother country, what may be called 
the ancient Constitution of England, first clearly defined in 
Magna Carta, was transformed into the modern Constitution 
Results of the through the Revolutions of 1640 and 1688. The reformed and 
Revolutions of invigorated constitutional system that stands out after those 
I 40 an . j-gyQiy^jons was a vastly wider and more complete fabric of 
liberty under law than that existing in Coke's time. Those revo- 
lutions brought into being many new constitutional principles, 
* Davidson v. New Orleans, 96 U. S. 97. 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 79 

most of which passed into American law, of which Coke 
never heard. As a practical illustration reference may be made 
to the recent notable discussion that occurred in Twining v. 
New Jersey,^ in which the Court had occasion to consider the 
origin of the constitutional right to an exemption from compul- 
sory self-incrimination. Down to Coke's death that compulsory 
principle was a part of the Star Chamber code. Not until after 
the Revolution of 1688, and as a consequence of it, was that 
Star Chamber process extinguished.^ The exemption from 
compulsory self-incrimination, to which the Revolution of 1688 Exemption 
gave birth, had become so clearly defined in English constitu- j^^^nation 
tional law, prior to the separation of the American colonies 
from the mother country, that the bills of rights of our first 
state constitutions bristle with definitions of it. That exemp- 
tion was first stated in a dogmatic form in the bills of rights of 
the state constitutions of 1776. We have the Court's word for 
it that "the exemption from testimonial compulsion, that is, 
from disclosure as a witness of evidence against one's self, forced 
by any form of legal process, is universal in American law, 
though there may be differences as to its exact scope and lim- 
its." That exemption only became "universal in American ^ 
law " because it had become firmly fixed in English law between 
1688 and 1776. The new constitutional principle, forbidding 
compulsory self-incrimination, that passed into all or nearly 
all of our original state constitutions, is highly typical of the fact 
that the bills of rights of those first state constitutions are but 
epitomes, and the very best epitomes of the English constitu- 
tional system as it stood forth after the Revolutions of 1640 and 
1688. The draftsmen of those constitutions would have recoiled 
with horror at the thought that they were founding American 
constitutional law upon the ancient English Constitution as it 
existed in 1 632 — with the Star Chamber and High Commission 
intact — and not upon the reformed English Constitution, as 
Blackstone described it in the first book of his famous " Com- Blackstone 
mentaries," put in their present form in 1758. Burke, in his t^e^^^e 
famous conciliation speech made in the House of Commons in 
1775, said: "I hear that they [English booksellers] have sold 
nearly as many of Blackstone's * Commentaries ' in America 

I 211 U. S. 78. 

* Stephen, History of Criminal Law, i, 440. 



8o 



THE AMERICAN CONSTITUTION 



[Ch. 



Modern Eng- 
lish system 
embodied in 
state consti- 
tutions. 



Justice 
Matthews' 
correct view. 



as in England. General Gage marks out this disposition very 
particularly in a letter on your table." 

Those " Commentaries" were taught at William and Mary 
College, before the Revolution of 1776, by Chancellor Wythe, 
who numbered Marshall, Jefferson, and Monroe among his 
students. American lawyers of that day, as of this, knew Coke 
through Blackstone, with his doctrines amended and expanded 
by the changes the Revolutions of 1640 and 1688 had wrought 
in the ancient Constitution of 1632. Thus trained and influ- 
enced, the founders of this Republic epitomized in our first 
state constitutions the modern English Constitution, as 
Blackstone had defined it. 

The documentary evidence upon that subject is so over- 
whelming as to preclude every other hypothesis. It being thus 
certain that the English constitutional law that passed into our 
first state constitutions was drawn from the reformed English 
system as Blackstone defined it in 1758, is it conceivable that 
the English constitutional law now embodied in our federal 
fabric was drawn from the ancient and unreformed English 
system as Coke described it in 1632, before the first meeting 
of the Long Parliament, whose work is an immortality? If any- 
thing in the history of any country Is certain. It Is that the 
essence of the English constitutional system as reformed by the 
Revolutions of 1640 and 1688, and as defined by Blackstone In 
1758, passed Into our first state constitutions, which were the 
filter-beds through which the essence of the reformed English 
system passed Into the existing Constitution of the United 
States. Therefore, in construing the due process of law clause, 
as it appears In the Fifth and Fourteenth Amendments, nothing 
but confusion and Inaccuracy can result from the accept- 
ance of the false standard contained in a misleading anachron- 
ism. We should have nothing to do with Coke's sketch of the 
ancient English Constitution as it existed in 1632 — we should 
turn instead to the true fountain opened for us by Blackstone 
in 1758. 

In Hurtado v. California,^ Mr. Justice Matthews was the 

first to perceive that the rule of construction, based on English 

constitutional theory as it existed in Cokeys time, was at once 

unsound and unpractical. In rejecting that idea, accepted 

» no JJ. S. 528. 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 8l 

without due consideration by Justices Curtis and Miller, he 
said: "It would be to stamp upon our jurisprudence the un- 
changeableness attributed to the laws of the Medes and Per- 
sians. This would be all the more singular and surprising, in 
this quick and active age, when we consider that, owing to the 
progressive development of legal ideas and institutions in Eng- 
land, the words of Magna Carta stood for very different things at 

THE TIME OF THE SEPARATION OF THE AMERICAN COLONIES /rom 

what they represented originally. ... In this country written 
constitutions were deemed essential to protect the rights and 
liberties of the people against the encroachments of power 
delegated to their governments, and the provisions of Magna 
Carta were incorporated into bills of rights"', that is, into bills 
of rights of the first state constitutions, because there were 
no other bills of rights. In these golden sentences Mr. Justice 
Matthews solved the problem by announcing that the Court, 
when construing the due process of law clause as it appears 
in the Fifth and Fourteenth Amendments, should take that 
formula with the meaning annexed to it in English constitu- 
tional law, " at the time of the separation of the American colo- 
nies," as contra-distinguished from the meaning annexed to it 
in 1632, when Coke's " Second Institute " was published. That 
conclusion he greatly strengthened by the statement that "the 
provisions of Magna Carta were incorporated into bills of 
rights," that is, into the bills of rights of our first state con- 
stitutions. Thus a new and unassailable historical test was laid 
down as a guide whenever a particular law or procedure is 
drawn in question on the ground that it is wanting in due pro- 
cess of law, and that new test received emphatic confirmation 
when the Court, speaking through Mr. Justice Gray in Lowe Justice Gray's 
V. Kansas,^ said: "Whether the mode of proceeding prescribed "^^* 
by this statute, and followed in this case, was due process of law, 
depends upon the question whether it was in substantial accord 
with the law and usage of England before the Declaration of 
Independence, and in this country since it became a nation, 
in similar cases." 

That emphatic refusal to recognize as a correct historical 
test the condition of English constitutional law as it existed in 
1632 was repeated in no uncertain terms in Twining v. New 

1 163 U. S. 81. 



82 



THE AMERICAN CONSTITUTION 



[Ch. 



Justice 
Moody's view 



Origin of re- 
presentative 
government. 



Jersey,* when the Court, speaking through Mr. Justice Moody, 
said: "Second. It does not follow, however, that a procedure 
settled in English law at the time of the emigration, and 
brought to this country and practiced by our ancestors, is an 
essential element of due process of law. If that were so, the pro- 
cedure of the first half of the seventeenth century would be fastened 
upon American jurisprudence like a straight-jacket, only to be 
loosed by constitutional amendment" 

After reading the foregoing, what student of American con- 
stitutional law can fail to perceive that the clue to the laby- 
rinth consists in a correct understanding of what the English 
Constitution really was when its basic principles passed into the 
state constitutions adopted in 1776 and shortly thereafter. 

During the five centuries that preceded the granting of the 
Great Charter, the principle of representation was actively 
employed in the popular courts of the hundred and shire in 
which the English people were trained in the art of self- 
government. From the very beginning in the hundred court 
appeared the reeve and four select men from each township 
within the hundred ; ^ in the shire court, like representatives 
appeared from each township within the shire, ^ while the 
twelve senior thegns appeared as a representative body in the 
courts of both hundred and shire.* The marvel is that not 
until after five centuries of such training did it occur to any one 
that just as the reeve and four select men could be sent to 
speak for the township in the county court, two knights elected 
in that court could be sent to speak for the county in the 
national assembly at Westminster. The first expression of that 
Writ! of 1213. idea is found in 12 13, when John called a council at Oxford, to 
which the sheriffs were directed to summon, besides the armed 
force of knights, four discreet men from each shire, to share in 
the King's deep speech touching the affairs of his kingdom, to 
form, in short, the first representative Parliament.^ 



1 211 U. S. loi. 

* In that arrangement appears 
the earliest form of the represent- 
ative principle. Hen. I, vii, sees. 
4, 7. Stubbs, Const. Hist., i, 103, 
note I. 

* That fact, left questionable in 
the laws, is proven by the later prac- 
tice. Hen. I, vii, sees. 4, 7; li, sec. 2. 



See also Bigelow, Hisi. of Procedure, 

133. 

* Mthelred, iii, see. 3; Cod. Dipt., 

iv, 137- 

* "Quatuor discretos homines de 
comitatu tuo illuc venire facias ad 
nos ad eundem terminum ad loquen- 
dum nobiscum de negotiis regni 
nostri." Lords' Report, App. i, p. 2. 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 83 

To Henry Ill's Parliament of 1254 the chosen knights from Writs of 1254, 
the shires were summoned for the first time since the reign of 
John.^ In order to conclude the arrangements embodied in the 
" Mise of Lewes," and in order to gain a broad popular basis for 
his government, Simon of Montfort, in 1265, issued the writ Writs of 1265, 
for his famous Parliament, to which were summoned not only 
two discreet knights from each shire, but also, for the first time 
in English history, two representatives from the cities and bor- 
oughs. ^ A period of thirty years then elapsed before the experi- 
ment was repeated ; the representatives of the cities and towns 
were not again summoned until Edward's Great Parliament of Great Parlia- 
1295, in which the estate system in England reached for the ^^^^ °^ "^^* 
first time its full and final development. That Parliament — 
in which the baronage appear in person and the clergy and the 
commons, each as an estate of the realm, in the persons of their 
chosen representatives — completes the transition in the con- Transition 
stitution of the national assembly from a feudal council to a [q^cu'^c^ 
council of estates.^ The time had now come when the supreme council of 
question, involving the right of the nation to tax itself, — a ^*^*^- 
right which the barons at Runnymede had clearly defined, but 
which the struggles of eighty years had failed to confirm, — 
had to be settled once and for all between the nation and the 
King. When, in 1297, Edward I precipitated the conflict by 
attempting to tax the nation without its authority, it met him 
inarms under the leadership of the earls Bigod and Bohun, 
who demanded the confirmation of the charters, supplemented Confirmatio 
by certain additional articles, all of which were confirmed by 'j^J^'^^'^^^ 

Nov. s 1207. 

the King at Ghent on November 5.^ The new articles, thus 
solemnly made a part of the Constitution, not only denounced 
all of the unauthorized taxation, but they also provided that, 
with certain exceptions, no taxes should thenceforth be imposed 
without the common consent of the realm and to the common 
profit thereof. Thus by the reincorporation into the charters 

* For the writ see Ibid. 13. quoA tunc de communi consilio ordina- 

* For the writ, see Ibid. 33; ^eZec/ bitur in prozmissis. Lords' Report, 
Charters, 415. App. i, p. 66. 

' From that time the attendance * Fcedera, i, 80. The charters had 

of representatives from both shires been previously confirmed by tnj/»e«- 

and towns has been continuous or imus on the 12th of October. Fad- 

nearly so; both knights and bur- era, i, 879; Statutes of the Realm, 

gesses are summoned ad faciendum i, 114-119. 



84 



THE AMERICAN CONSTITUTION 



[Ch. 



Two stages 
of growth. 



Parliament 
divided into 
two houses. 



Sheldonian 
compact of 
1664. 



of these vital limitations upon the royal right of taxation, 
which for more than eighty years had been omitted from them, 
the prolonged struggle inaugurated by the barons at Runny- 
mede ended at last in a completely successful consummation. 
The exclusive right of the national assembly to authorize tax- 
ation was now fully smd finally recognized, save in so far as 
that right was limited by the proviso, "saving the ancient 
aids and prizes due and accustomed." ^ 

Thus it appears that the history of the representative system 
is divided into two epochs : first, that in which the reeve and 
four men appear as representatives of the township in the 
courts of the hundred and the shire; second, that in which 
the representatives of the shires and towns appear in national 
parliaments. At the time fixed in the writs the lords spiritual 
and temporal, together with the representatives from the 
shires and towns, were expected to appear before the King at 
Westminster or at any other place he had seen fit to designate. 
Not until the reign of Edward I did Westminster become in the 
full sense of the term the seat of government ; and not until the 
reign of Edward III was Parliament definitely divided into two 
houses. In 1377 Sir Thomas Hungerford was chosen Speaker, 
the first to whom the title and position were definitely assigned ; 
while the Chancellor, not necessarily a peer, usually presided in 
the House of Lords. ^ The clergy of the two provinces, refusing 
to be jointly assembled as an estate of Parliament, continued 
to tax themselves in their provincial convocations until after 
the restoration of Charles II, when, in 1664, by a mere verbal 
agreement between Archbishop Sheldon and Lord Chancellor 
Clarendon, an arrangement was made under which the clergy 
waived their right to tax themselves, and agreed to be assessed 
by the laity in Parliament, gaining thereby the new right of 
voting at the election of the members of the House of Commons 
by virtue of their ecclesiastical benefices.^ Thus the fact was 

^ By that proviso the King refused Pari. Practice, 23 (and note 4), 49, 



to surrender his old exchequer rights 
over the settlers on his domain lands, 
and over the tolls traditionally fixed 
(custuma antiqua), those, namely, on 
wool, hides, and leather. See 
Gneist, Eng. Parliament, note to p. 
136 (Shee's trans.). 
» Rot. Pari., ii, 374. See May, 



243, 246. 

* The results of this silent revolu- 
tion, called "the greatest alteration 
in the Constitution ever made with- 
out an express law," were distinctly 
recognized in an Act of Parliament 
passed in the following year (16 and 
17 Par., ii, c. i). 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 85 

fixed that the Parliament should consist of two houses instead 
of three. At first the Commons were permitted to participate 
only in taxation, a burden that drew after it the right to parti- 1 

cipate in legislation. Finally Parliament as a whole established j 

its right to control the royal administration, to impeach the 
Ministers, and to depose the King himself in the last resort. The 
deposition of Edward II was settled by the Parliament of 1327, 
and in 1399 the same procedure removed Richard II, who was 
succeeded by Henry IV, the first king of the House of Lan- Accession 
caster.^ During its domination it was that the immature par- Lanaister'' 
liamentary system collapsed through a set of causes that have 
a history of their own. As the parliamentary system was the 
outcome of the estate system, the collapse of the one naturally 
followed the collapse of the other. Under the favorable con- 
ditions thus presented, by the paralysis of the constitutional 
forces by which it had been so long held in check, the monarchy, 
upon the accession of Edward IV, lifted up its head, and casting Accession 
off the fetters by which it had been bound by the parliament- y^^^^^ °^ 
ary system on the one hand and by the system of royal admin- 
istration on the other, entered upon a fresh career of auto- 
cracy which was not destined to be broken until the days of the 
Stuart kings. 

A point has now been reached from which it is possible to Origin of the 
review the advance made by Parliament during the period that P^^* courts of 

■' Of law and equity. 

intervenes between the Norman Conquest and the end of the 
fourteenth century. During that period the feudal councils 
that gathered around the Norman and Angevin kings, with 
authority too vague and shadowy for precise definition, are 
gradually transformed into an assembly of estates, which wins 
not only the right to participate in taxation and legislation, but 
to supervise and control the entire system of national adminis- 
tration, and, in the last resort, to depose the King himself. At 
the end of the period we find that the sum of governmental 
power originally vested in the King in Council has been vastly 
reduced by the operation of two distinct processes of sub- 
traction. In the first place, by the growth out of the continual 
council — which soon came to be known as the Curia Regis — 
of the common-law courts of King's Bench, Common Pleas, and 

^ Upon the whole subject, see The Origin and Growth of the Eng. Const., 
i, 428-515. 



86 



THE AMERICAN CONSTITUTION 



iCH. 



Equitable 
jurisdiction of 
the Chancellor. 



Origin of 
courts of 
assize 



Powers 
retained 
by the King 
in Council. 



Exchequer, the greater part of the judicial work of the Council 
was permanently transferred to three distinct tribunals, each 
devoted to the hearing of a definite class of causes. And when 
at a later day out of the residuum of judicial power retained 
by the Council was developed the equitable jurisdiction of the 
Chancellor, the judicial functions of the Crown were confined 
within a still narrower circle. By the transfer thus brought 
about of the greater part of the judicial business originally dis- 
patched by the King in Council to the great courts of law and 
equity, the central administration, in its judicial aspect, was 
transformed into a government of law as distinguished from 
a government of functionaries.^ Out of the fusion between the 
central administration of justice vested in the Curia Regis with 
the local administration vested in the shire-moots, grew the 
modern courts of assize, in which the itinerant justices still 
preside, but in which the general assembly of the shire is repre- 
sented only by the grand and petty jurors who are summoned 
by the sheriff for the trial of civil and criminal cases. Only by 
working out that process of fusion between the system of royal 
law radiating from the Curia Regis, with the system of popular 
law immemorially administered in the local courts, can we 
understand the history of the typical circuit court existing in 
every state of the American commonwealth, in which all cases 
at common law, civil and criminal, are disposed of by a judge 
with the aid of juries, grand and petty. By the side of that sys- 
tem we have also reproduced the equitable jurisdiction of the 
English Chancellor, sometimes vested in a separate tribunal, 
but generally in a court having common-law powers. 

While the law courts were thus drawing to themselves the 
control of the bulk of the judicial work originally belonging to 
the King in Council, the assembly of estates was struggling, as 
heretofore pointed out, to draw to itself the exclusive control 
of the legislative, taxative, and fiscal business of the kingdom. 
But before the national assembly was in a position to essay so 
great a task, a reorganization had first to be effected in its own 



^ "The guarantee of the suprem- 
acy of the law leads to a principle 
which, so far as I know, it has never 
been attempted to transplant from 
the soil inhabited by Anglican peo- 
ple, and which, nevertheless, has 



been in our system of liberty the 
natural production of a thorough 
government of law as contra-distin- 
guished to a government of func- 
tionaries." Lieber, Civil Liberty and 
Self-Government, 91. 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 87 

constitution, a result brought about by the building-up along- 
side of the older feudal council of a new popular body composed 
of representatives of the shires and towns. In the Parliament 
thus reconstructed, the Commons soon ceased to be mere aux- 
iliaries of the baronial body, — they became the more active 
and aggressive force in the new combination. And yet, when 
a summing-up is made of the results of the two processes of 
subtraction, the important fact remains that neither process was 
exhaustive. At the end of the struggle in which Parliament did 
its utmost to win the exclusive control of legislation as well as 
taxation, there still remained in the hands of the King in Coun- 
cil an undefined reserve of legislative power for a long time 
exercised in the making and revoking of a class of temporary 
enactments known as ordinances. After the jurisdiction of the Ordinances, 
four great courts at Westminster had been fully established, an 
undefined reserve of judicial power still remained to the King in 
Council, a reserve out of which at a later day grew that famous 
engine of the York and Tudor monarchy finally known as the 
Star Chamber. 

When, after the collapse of the immature parliamentary sys- York 
tem in the storm and stress of the civil war, the House of York ^°^ Tudor 
ascended the throne in the person of Edward IV, he was careful 
to stimulate the judicial powers of the Council, which he finally 
converted into an engine of tyranny. So far as constitutional 
history is concerned, the short reign of Richard III is a mere 
episode. The real successor of Edward IV, in a constitutional 
sense, is Henry VI I . The despotic policy founded by Edward was 
continued by Henry and his successors, who systematized and 
enforced it as a permanent system of government. From the 
accession of Henry VII to the Revolution of 1640 the history of 
the Council is the history of the monarchy. During that period 
of a century and a half, both the law courts and the Parlia- 
ment crouched at the feet of its paramount authority. The 
soundest critics agree in the conclusion that the famous Act of 
3 Henry VII, c. i, was only intended to invigorate, by parlia- 
mentary sanction, the ancient prerogative criminal jurisdiction 
of the Crown, which, as early as the reign of Edward III, we 
hear of the "chancellor, treasurer, justices, and others exer- 
cising in the *chambre des estoiles^ at Westminster." The The Star 
powers of the special committee or court, organized under the Chamber. 



88 



THE AMERICAN CONSTITUTION 



[Ch. 



From 

Edward IV 
to Wolsey. 



Cromwell's 
new policy. 



Collapse of 
representative 
government on 
the Continent. 



Act of 3 Henry VII, c. i, after maintaining a separate existence 
for about fifty years, fell back, toward the close of the reign 
of Henry VIII, to the general body of the Council, The Act of 
31 Henry VIII, which gave to royal proclamations the force 
of law, provided that offenders against them might be punished 
by the ordinary members of the Council, together with certain 
bishops and judges, "in the star chamber or elsewhere." ^ 

From the accession of Edward IV down to the fall of Wolsey, 
the settled policy of the Crown had been to discourage par- 
liamentary action, by calling the estates together only on rare 
occasions, and by confiding as far as possible the entire central 
administration of the state to the Privy Council. That policy 
Cromwell suddenly reversed by the constant employment of 
Parliament as a tool through whose acts the papal supremacy 
was overthrown and the church stripped at once of its estates 
and independence. Emboldened no doubt by the fact that the 
Lords were still a subservient and spiritless body that cowered at 
the feet of the King, and that the Commons were largely made 
up of members nominated directly or indirectly by the Privy 
Council, Cromwell, so far from shrinking from an appeal to the 
estates, was keen to call them together, year after year, and to 
force upon their attention every possible question to which he 
desired to add the forms of legality or the apparent sanction of 
popular approval. 

With the close of the Middle Ages, every effort that had 
been made in the direction of representative government on 
the Continent of Europe came to an end. Then it was that the 
free constitutions of Castile and Aragon were overthrown by 
Charles V and Philip II; then it was that the States-General 
of France met for the last time (1614) before their final meet- 
ing (1789) upon the eve of the French Revolution. ^ But the 
new system of absolutism reestablished by the House of York 
and perpetuated by that of Tudor did not aim at the aboli- 
tion of the older forms of constitutional life by which the 
monarchy had been fettered for more than a century ; it simply 



^ For the literature touching the 
history of the Star Chamber, see 
The Origin and Growth of the Eng. 
Const., ii, 23-27 and notes. 

' Cf. Robertson's Charles V, iii, 
434; Watson's Philip II, iii, 223; 



Prescott's Philip II, first chapter of 
book vi; Sismondi, xiii, 342 ; Macau- 
lay, History of England, i, 46-48; 
Freeman, Growth of the English Con- 
stitution, 139. 



III.l EVOLUTION OF THE TYPICAL AMERICAN STATE 89 

strove to extinguish forever the vital spirit which in the better 
days had made them actual restraints on the royal authority. 

That vital spirit would, no doubt, have been extinguished English 
had it not been for the fact that just as the long night of Renaissance. 
political reaction, coextensive with the York and Tudor mon- 
archy, began to settle down like a blight upon the growth of the 
English Constitution, the dawn of the Renaissance began to 
break on the life of the English people. While Edward IV and 
Henry VII were fastening upon the island kingdom the system 
of absolutism which had begun to prevail throughout the Con- 
tinental nations, the main body of the people were beginning 
to be stirred by the spirit of that new and marvelous era of 
national awakening generally known as the English Renais- 
sance, — a term which must not be confined to the mere Real meaning 
revival of learning, but so expanded as to embrace the whole °^ ^^^ '^™" 
process of mental and material development that brought to 
the English people its new conceptions of philosophy and 
religion, its new understanding of government and law, its 
reawakened interest in the arts and sciences, its new-born 
activity in commerce and manufacture, as well as that spirit 
of discovery and adventure that widened its destiny through 
conquest and colonization in another hemisphere. During the 
period in which Edward IV was overawing the law courts and 
trampling upon the Parliament, the "shining seed-points of 
light" out of which the new life was to spring were being sown 
amid the embers of the dying mediaevalism. The reign of mon- Reign of mon- 
archy in England, as in the rest of Europe, brought with it archy brought 
peace, which gave a marked impetus not only to agriculture 
and manufacture, but to foreign commerce. The shores of the 
Mediterranean no longer marked the limits of the maritime 
world; the dominion of the seas had already begun to pass 
from the Italian seaports to the nations bordering on the 
Atlantic seaboard ; the great era of discovery and conquest had 
now come, in which English seamen and soldiers were soon to 
bear their part. During the sixteenth century the Cabots, Era of dis- 
Gilbert, Barlow, Armidas, Drake, and Raleigh braved every coveryand 

. , • r A • conquest. 

hardship and faced every danger in the prosecution of Ameri- 
can discovery; and in the next age their work was crowned by 
the brave English hearts who at last overcame the terrors of 
the wilderness, and laid the foundations of the great republic 
beyond the sea. 



1/ 



90 

Stuarts and 
Revolution 
of 1640. 



Conflict be- 
tween con- 
ciliar and par- 
liamentary 
systems. 



Two famous 

trading 

charters. 



THE AMERICAN CONSTITUTION 



[Ch. 



To the Stuarts the conciliar system of the Tudors passed 
unimpaired just at the moment when that system was becom- 
ing unequal to the task of governing a nation that had already 
entered upon a career of marvelous development. James I and 
Charles I, so far from accepting the mission of reform thus 
naturally arising out of changed conditions, not only con- 
tinued the system of government by councils the Tudors had 
bequeathed to them, but attempted to intensify its absolutism 
both in theory and practice. What the constitution of the 
Council was in the days of Elizabeth it remained down to the 
meeting of the Long Parliament, and during that period its 
powers were stretched to a greater extent than had ever been 
known before. Between the reviving parliamentary system, 
animated by the new and aggressive spirit of liberty that passed 
into the Commons from the Renaissance and the Reformation, 
and the waning system of government by councils, animated by 
the spirit of absolutism, more than ever intense, derived from 
James, a conflict was inevitable. That conflict was a long and 
bitter one. Not until after the completion of two revolutions 
was the English nation able finally to subject the conciliar sys- 
tem, as organized by the Tudors and enforced by the Stuarts, 
to the parliamentary system as it exists in modern times. 

** Within the period of ten years, under the last of the Tudors 
and the first of the Stuarts, two trading charters were issued to 
two companies of English adventurers. One of these charters 
is the root of the English title to the East, and the other to the 
West. One of these companies has grown into the Empire of 
India; the other into the United States of North America." ^ 
The claim of the English Crown to the territory upon which the 
English settlements in America were made was based upon the 
voyages of the Cabots made along the American coast during 
the years 1497 and 1498. The first patent issued to the Cabots — 
the oldest surviving document connecting the old land with the 
new ^ — gave to the patentees the right to sail under the royal 
ensign, and to set up the royal banner in any newly discovered 
land as lieutenants and vassals of the King. The inchoate right 



* Bryce, The American Common' 
wealth, i, 416. 

* That document, which is dated 
5th March, 1495 (1496 new style), is 



printed in the Hakluyt Society's 
edition of the Divers Voyages, and in 
Rymer's Foedera. 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 91 

thus acquired by discovery at the close of the fifteenth century English title 
did not ripen into a perfect title until early in the seventeenth, '° ^^'^ ^°'^^^- 
when the permanent English settlements in America were 
made. In order to regulate the competition for the possession 
of the new world, and to avoid conflicting settlements, and 
consequent war with each other, the European nations agreed 
"to establish a principle which all should acknowledge as the 
law by which the right of acquisition, which they all asserted, Rule 
should be regulated as between themselves. This principle ""^sulating 

*^ acquisition. 

was that discovery gave title to the government by whose 
subjects, or by whose authority, it was made, against all other 
European governments, which title might be consummated by 
possession." * The principle thus established assumed that the 
Indian tribes found on the soil were mere temporary occu- 
pants. According to the theory of the English Constitution the 
title to all newly discovered lands accrued to the King in his 
public and regal character, and the exclusive right to grant 
them resided in him as a part of the royal prerogative: "Upon 
these principles rest the various charters, and grants of terri- 
tory made on this continent." '^ It is not therefore strange that 
when James I executed the great title-deed of April 10, 1606, James's 
he should have conveyed the heart of the new world to certain charter of 
patentees just as if it were a royal manor. The granting clause 
of the charter is, "To be holden of us, our heirs and successors, 
as of our manor at East-Greenwich, in the County of Kent, 
in free and common soccage only, and not in capite." ^ By 
the charter in question two companies were formed, and to the 
"First Colony," or London Company, as it is usually called, London 
he granted a tract of land fronting one hundred miles on Company. 
the Atlantic coast and extending one hundred miles into the 
interior, to be located at such point as the company might 
select between the thirty-fourth and forty-first parallels of 
north latitude. To the "Second Colony," or the Plymouth Plymouth 
Company, he granted a similar tract of land, to be located Company, 
between the thirty-ninth and forty-fifth parallels of north lati- 
tude. In the intervening belt both companies had the right to 

* Marshall, C. J., in Johnson v. ' See Poore's Charters and Consti- 

Mclntosh, 8 Wheat. 573. tutions, part ii, p. 1892. It is also 

' Taney, C. J., in Martin et al. v. contained in Stith and in Hazard's 

The Lessee of Waddell, 16 Peters, Hist. Collections. 
409. 



i/ 



92 



THE AMERICAN CONSTITUTION 



[Ch. 



English law 
the basis. 



London Com- 
pany's sepa- 
rate charter 
of 1609. 



Domains of the 
five southern 
colonies. 



locate, provided that neither should settle within one hundred 
miles of the other. To an uncivilized country, such as America 
then was, English subjects carried with them, as their birth- 
right, the laws of England existing at the time the coloniza- 
tion took place. '^ The foundation of the entire fabric was Eng- 
lish law, the original charter providing "that all and every the 
persons being our subjects, which shall dwell and inhabit 
within every or any of the said several colonies and planta- 
tions, and every of their children, which shall happen to be 
born within any of the limits and precincts of the said several 
colonies and plantations, shall have and enjoy all liberties, 
franchises, and immunities, within any of our other dominions, 
to all intents and purposes as if they had been abiding and born 
within their own realm of England or any other of our said 
dominions." ^ In May, 1607, the London Company made the 
settlement at Jamestown, the first permanent settlement made 
by Englishmen on the soil of the new world. In 1609 a sep- 
arate charter was granted to the London Company ^ which 
gave to it half the continent; and within its larger domain it 
had power to govern colonies, subject to the sovereignty of the 
King and their rights as British subjects.* Out of the vast 
expanse thus granted to the London Company were carved the 
domains finally distributed between the five southern colonies 
of Virginia, Maryland, North Carolina, South Carolina, and 
Georgia. Under a license obtained from the Plymouth Com- 
pany a Puritan settlement was established in 1620 at Ply- 
mouth, in the southeastern part of what is now the State of 
Massachusetts, by a band of separatists from the English 
Church, who had for a time dwelt in Holland, prior to their final 
departure from the mother country to their New England 
home. North of the Plymouth settlement was established at a 



* In a civilized country occupied 
by Englishmen, the laws prevailing 
at the time of conquest continue 
until an alteration is made. Cf. 
Taylor, The Science of Jurisprudence, 
489, and notes. 

* Charters and Constitutions, part 
ii, pp. 1891-1892. 

» Ibid. 1893. 

* The new grant extended from 
Point Comfort "all along the Sea 



Coast to the Northward, two hun- 
dred miles," and "along the Sea 
Coast to the Southward, two hun- 
dred miles," and "up into the Land 
throughout from Sea to Sea, West 
and Northwest," including all the 
islands within one hundred miles of 
the coast. See map of Virginia's 
claim under charter of 1609, in 
Higher History of the United States, 
by H. E. Chambers, p. 84. 



III.l EVOLUTION OF THE TYPICAL AMERICAN STATE 93 

little later day another, by men of the same general creed, but 
of a broader culture, which in March, 1629, was incorporated 
by royal charter under the name of the "Governor and Company 
of Massachusetts Bay in New England " — a charter obtained 
in order to put at rest any difficulty as to the title of the colony 
originally derived from a grant made to it by the Council of 
New England.^ After establishing the colony of Massachusetts 
Bay, into which the Plymouth settlement was finally incor- 
porated, the Plymouth Company, in June, 1635, surrendered 
its charter to the Crown, and out of the territory which had 
been granted to it were carved the domains finally distributed 
between the four northern colonies of Massachusetts, Con- Domains of 

necticut, Rhode Island, and New Hampshire. Out of the t^^^ four north- 

em colomes. 
march or borderland, fixed between the territories of the two 

original companies by the original grant of 1606, were carved 
the domains of New York, New Jersey, and Pennsylvania, Domains of the 
from the last of which was clipped the State of Delaware. In ^°y^ middle 
this wise the heart of North America, which passed to the Eng- 
lish Crown by the right of discovery, was granted, as any royal 
manor might have been granted, first, to the two trading com- 
panies created by the charter of 1606, and, after their dissolu- 
tion, to the thirteen colonies that united in the making of the 
Declaration of Independence. 

Having now examined the title to the soil upon which the Colonies mere 
English colonies in America were planted, some reference must ^r"^*"'! b°°th 
be made to the character of the corporations created by the Crown. 
Crown under whose ordinances the settlers organized self- 
governing communities. In England and the United States, as 
at Rome, all corporate organization rests upon state author- 
ity; and everywhere the ideal conception of the juristic person 
is expressed in substantially the same terms. By an English 
court we are told that "a corporation aggregate of many is 
invisible, immortal, and rests only in intendment and consider- 
ation of law. It has no soul, neither is it subject to the imbecil- 
ities of the body " ; ^ by an American, that " a corporation is an 
artificial being, invisible, intangible, and existing only in con- 
templation of law. Being the mere creature of law, it possesses 

^ For the history of these settle- * The case of Sutton's Hospital, 

ments, see Nar. and Crit. Hist., iii, 10 Rep. 32 b. 
219-384. 



L/ 



94 

Creation and 
dissolution of 
corporations. 



THE AMERICAN CONSTITUTION 



[Ch. 



Soil granted 
as terra regis. 



Revocation of 
charter of 
London Com- 
pany, 1624; 



and of Massa- 
chusetts, 1684. 



only those properties which the charter of its creation confers 
upon it, either expressly or as an incident to its very existence." * 
In England, the consent of the Crown is absolutely necessary 
to the erection of a corporation, either impliedly or expressly 
given. "A corporation may be dissolved, (i) by an act of Parlia- 
ment, which is boundless in its operations; (2) by the natural 
death of all its members, in case of an aggregate corporation; 
(3) by surrender of its franchises into the hands of the sover- 
eign, which is a kind of suicide; (4) by forfeiture of its charter, 
through negligence or abuse of its franchises, in which case the 
law judges that the body politic has broken the conditions 
upon which it was incorporated, and thereupon the incorpora- 
tion is void." ^ The soil upon which the English colonies in 
America were planted was granted to them as terra regis by the 
English Crown; it was not granted to them as folkland by 
the English Parliament.' 

The charters under which the colonial governments were 
organized were likewise royal grants; they were not conces- 
sions from the English legislature. In contemplation of Eng- 
lish law the whole group of colonial governments in America 
created or confirmed by royal charters were mere corpora- 
tions created by the King, and subject like all others of 
their kind to his visitorial power, and to the power of his 
courts to dissolve them in a proper case presented for the 
purpose. In 1624 the charter of the London Company, under 
which the settlement at Jamestown had been made, was 
brutally revoked through a legal judgment, "one of the earliest 
of those efforts in which the Stuart reigns were so fruitful, 
efforts to wrest the process of law to the arbitrary purposes of 
the Crown"; * and in 1684 the charter of Massachusetts was 
canceled by the crown, judges in a proceeding begun by scire 
facias.^ Until some cause of forfeiture arose, the grant, as 
between the Crown and the patentees, was irrevocable, — it 
being the settled doctrine of English law that after a grant of 
corporate powers made by the Crown had been once accepted, 
the Crown could not resume the grant without the consent of 

* Dartmouth College v. Wood- * Doyle, English Colonies in Amer- 
ward, 4 Wheat. 636. ica, Virginia, etc., 182. 

* Blackstone's Com., i, 461. ^ See Palfrey's New Eng., iii, 39X- 
» See Essays in A. S. Law, 91-93, 393. 

98-100. 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 95 

those in whom its privileges had been vested.^ The irrevocable 
rights thus acquired by the colonists as against the Crown were 
revocable, however, at the hands of the Parliament. Under the 
theory of the English Constitution, then as now, " Its power is. The 
legally speaking, illimitable. It may create and abolish and o'^^po^^^t 
change, at its pleasure, with or without the assent of the people 
or corporation to be thereby affected." ^ Subject to this illim- 
itable power of the Imperial Parliament, the English Crown 
organized upon the soil of the new world a group of colonial 
governments, whose differences of internal organization, and 
whose greater or less dependence upon the Crown, distin- 
guished them broadly from each other. 

Those colonies to which the Crown gave most sparingly the The royal 
right to regulate their own affairs are generally known as royal vij*^^~ 
colonies, — a typical representative of which may be found 
in the colony of Virginia, whose early constitutional growth ' 

happily illustrates the general process of evolution through 
which the most dependent of the English settlements in Amer- 
ica was rapidly transformed from a servile corporation into 
a self-governing state organized upon the model of the English 
kingdom. The government of the London Company, whose 
charter granted by James I in 1606 contained the germs of the 
Virginia constitution, was vested in a resident council of thir- 
teen appointed by the Crown, who were authorized to choose 
their own president, and to govern "according to such laws, 
ordinances, and instructions as shall be in that behalf given" 
by the King. The resident council was subject to the control of 
the superior council in England, which was also subject to the 
ultimate ordaining power of the King in Council.' In the spring Ordaining 
of 1609 this complex system of royal government was relaxed [^^Kingin 
in favor of local control through a reorganization of the com- Council, 
pany, whereby the non-resident council was abolished and the 
government of the colony vested in a single resident council 
nominated by the King in the first instance, but vacancies 
in which were afterwards to be filled by a vote of the whole 
company. Under this council — which was authorized to 

^ Cf. Dillon, Municipal Corpora- Council and the law-making power 

tions, i, 109, 2d ed., and cases cited. of the King in Parliament, see The 

* Ibid. no. Origin and Growth of the Eng. Const., 

* As to the distinction between i, 496-497. 
the ordaining power of the King in 



96 



THE AMERICAN CONSTITUTION 



[Ca. 



First American 
representative 
assembly, 1619. 




»//' 



The colony as 
a reproduction 
of the parent 
state. 



choose a governor, and "to make, ordain, and establish all 
manner of orders, laws, directions, instructions, forms and 
ceremonies of government, and magistracy, fit and necessary 
for and concerning the government of the said colony " ^ — 
the Virginian settlement became almost an independent and 
self-governing community. In 161 2 still further concessions 
were obtained in favor of the company; and in 16 19, under its 
instructions, the governor summoned an assembly of burgesses 
from the several hundreds, counties, and plantations embraced 
within its limits, which met on the 30th of July in the chancel 
of the church at James City or jamestowhT' Thus was con- 
stituted the first representative legislative assembly ever held 
in America, which was composed of twenty- two burgesses from 
the eleven several towns, plantations, and hundreds, styled 
boroughs. "The local assemblies in which the colonists were 
represented 'were not formally instituted, but grew up by 
themselves, because it was in the nature of Englishmen to 
assemble'"; ^ or, as Hutchinson has expressed it, "This year 
[1619] a House of Burgesses broke out in Virginia." * The 
history of the Virginian settlement down to this point clearly 
illustrates how rapidly even a royal colony slipped from the 
actual grasp of the Crown, and how, in its internal organiza- 
tion, it involuntarily reproduced the outlines of the ancient 
Constitution. At the base of its local organization we find the 
hundred and the shire; in the colonial governor we have a 
reflected image of the kingship; in the Royal Council — the 
House of Lords; in the House of Burgesses — the House of 
Commons. As heretofore pointed out, the foundation of the 
whole fabric was, by the terms of the charter, English law. In 
spite of the wanton proceedings by which its charter Was 
annulled by a judgment of the King's Bench in 1624, and its 
affairs transferred to the Privy Council, the Virginian settle- 
ment survived as a royal colony, and its government as finally 
organized was vested in a representative assembly chosen by 
the people, in a royal council nominated by the Crown, and in a 
royal governor armed with a veto power upon legislation. Such 



^ Language of the second charter. 
See Charters and Constitutions, part 
ii, p. 1899. 

* See Nar. and Crit. Hist., iii, 143. 



* Maine, Pop. Government, 223. 

* See Seeley, The Expansion of 
England, 67. 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 97 

was the general structure of a royal colony,* a type which, 
originally represented by Virginia alone, came to be the pre- 
vailing type before the severance from the mother country. 

In the same sense in which Virginia stands as the typical The charter 
representative of the royal colonies, Massachusetts stands as ^ °'"^,~ 
the typical representative of the opposite class, — consisting setts, 
of Massachusetts, Rhode Island, and Connecticut, — gener- 
ally known as the charter colonies, despite the fact that their 
foundations were laid without the aid or sanction of charters at 
all. As Tocqueville has expressed it, "in general, charters were 
not given to the colonies of New England till their existence 
had become an established fact. Plymouth, Providence, New 
Haven, Connecticut, and Rhode Island were formed without 
the help, and almost without the knowledge of the mother 
country." ^ It may therefore be said that their free constitu- 
tions were older than their charters. The royal charter of 1629, 
that organized the group of New England settlements into 
a corporation under the title of the " Governor and Company 
of Massachusetts Bay," and then authorized them to regulate 
their own affairs as a practically independent and self-govern- 
ing community, was in fact nothing more than a recognition of Her charter 
a preexisting state of things.^ The government of the Massa- of pre^s&ig 
chusetts colony was vested by the charter in the governor, conditions. /, 
deputy governor, and eighteen assistants, all of whom were to" 
be annually elected by the freemen. The only dependence 
under which the colony labored at the outset grew out of the 
fact that it was subject to the control of a corporation in Eng- 
land comprised of those by whom its organization had been 
brought about. With the extinction of that corporation 
through the transfer of its charter to America, that tie was 

^ See Chalmer's Introduction, i, and which, even at the last, only 

13-16. made use of the royal authority to 

* Democracy in America, i, 45. complete the symmetry of the 
Connecticut has been graphically boundaries it had fairly won for it- 
described as "a state which was self." See Johnston, "The Genesis 
born, not made, which grew up of a New England State," Johns 
by natural accretion of townships, Hopkins Studies, ist series, xi, 6. 
which formed its own government, * "But, if it be not a paradox to 
made its own laws, engaged in its say so, the constitution of Massa- 
own alliances, fought its own wars, chusetts was older than the existence 
and built up its own body, without of the colony." Doyle, English Colo- 
the will of King, Kaiser, or Congress, nies in Am., Puritan, etc., i, 104. 



i^' 



98 



TEE AMERICAN CONSTITUTION 



[Ch. 



Charters of 
Rhode Island 
and Connecti- 
cut retained. 



// 



The proprie- 
tary system — 
Maryland. 



A county 
palatine. 



severed, and Massachusetts became, as far as a colony could 
become, an independent commonwealth, and continued to be 
such down to the annullment of its charter in 1684 by scire 
facias. By the new charter granted it in 1691 its original inde- 
pendence was much curtailed by a provision which gave to the 
Crown the right to appoint a royal governor with an absolute 
veto on legislation. Both Rhode Island and Connecticut pre- 
served their free charters unaltered down to the Revolution; 
and even then — so completely adequate were they to all their 
wants — they did not change them. The charter granted to 
Connecticut by Charles II in 1662 was continued as her 
organic law until 1818; while the charter granted in 1663 to 
Rhode Island was continued as her organic law down to 1842.*, 
Between the royal and charter governments stood a middle 
class known as proprietary, which approached nearer to the 
latter than the former in respect to their freedom from royal 
control. The proprietary system, which grew out of the idea 
that the work of colonization could be better accomplished by 
private individuals than by corporate enterprise, rested upon a 
series of grants made by the Crown to one or more proprietors 
of vast tracts of land coupled with an almost unlimited power 
of government and legislation. The first proprietary govern- 
ment that bore fruit was that of Maryland, whose constitu- 
tional history begins with the grant, made in 1632 to the first ^ 
Lord Baltimore, of the tract of land lying to the north of that 
actually settled by the Virginia Company. By that grant the 
proprietor and his successors were not only invested with the 
title to the land, but they were also authorized to make laws 
with the assent and advice of the majority of the freemen or 
their representatives, free from all real dependence upon royal 
authority.' The details of political organization were in a great 
measure confided to the discretion of the proprietor, whose 
original conception of a constitution consisted of a governor, 
council, and primary assembly, — a veritable Old-English 



* See Charters and Constitutions, 
part i, p. 252; part ii, p. 1603. 

* Before the patent passed the 
seals George Calvert died, and the 
charter was granted to his son Ce- 
cilius, second Lord Baltimore. 

' "The province was made a 



county palatine; and the proprietary 
was invested with all the royal 
rights, privileges, and prerogatives 
which had ever been enjoyed by 
any Bishop of Durham within his 
county palatine." Nar, and Crit. 
Hist., iii, 520. 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 99 

gemote, — in which every freeman had the right to represent 

himself and to vote. Gradually as the primary plan grew in- Primary plan 

convenient it was supplanted by a representative system, and s^PP^^nted by 

. r 1 ,..,,. 1 t 1 representative 

in 1647 the governing body was divided into two chambers, the system. 
lower consisting of an elective house of burgesses, the upper of 
councillors and of those speedily summoned by the proprietor.^ 
In the grant to the proprietors of Carolina we find the same 
absoluteness of sovereignty over the land, and the same free- 
dom from royal control, with more careful provision, however, 
in favor of the freeholders, who were endowed with a charter 
right ' to participate in legislation. Here it was that the pro- 
prietors attempted to create a political fabric through tlie aid 
of Locke, — a philosopher of the Social Contract School, — Carolina, 
whose Fundamental Constitutions quickly illustrated how ^^^focke's 

^_ ■' fundamental 

vain it was to attempt to govern Englishmen by a paper con- Constitutions, 
stitution ^ whose complicated and artificial details offended the 
national instinct by departing from the primitive tradition. 
When the proprietary system is viewed as a whole, the great 
landlords to whom the original grants of land and political 
authority were made must be looked upon as the mediums or 
conduits through which the Crown conveyed to the colonists 
the boon of local self-government. The colonies of Maryland," 
New York, New Jersey, New Hampshire, Pennsylvania (in^ / / ^,^- 
eluding Delaware), Carolina, and Georgia were at the outset" 
proprietary. But as the proprietors one by one surrendered 
their charters to the Crown, they were all transformed into 
royal colonies, except Maryland, Pennsylvania, and Dela- 
ware, which remained proprietary down to the Revolution — 
subject to the charter right of their governors to veto legis- 
lation. 

Having noted the external relations of the colonies to Crown England's 
and Parliament, something must be said of their internal organ- a^cd^S? 
ization. The statement has been made already that out of a nation. 
union of townships grew what was finally known in England 
as the hundred ; out of a union of hundreds grew the modern 

* As to the history of the early * For the first draft of the consti- 
assemblies, see Nar. and Crit. Hist., tutions, see Carroll, ii, 361 ; for the 
iii, 528-531, 536. See also Doyle, later modifications, see the Shaftes- 
Virginia, etc., 286-291. bury Papers, under the years in 

* See Charters and Constitutions, which they were issued, 
part ii, p. 1392. 



v/ 



100 



THE AMERICAN CONSTITUTION 



[Ch. 



Political 
aggregation 
in America. 



County and 
township as 
agents of local 
government. 



shire; out of a union of modern shires grew the English king- 
dom. The power to subdue and settle a new country, and then 
to build up a state by that process of aggregation, constitutes 
the strength of the English nation as a colonizing nation, By 
that process, capable under favorable geographical conditions 
of unlimited expansion, has been built up the Federal Republic 
of the United States. " In America ... it may be said that the 
township was organized before the county, the county before 
the state, the state before the union." ^ In the effort to re-create 
the process through which the English colonies in America were 
made, we must keep steadily in view the process through which 
their prototype in Britain was made. The elements of organ- 
ization in both were the same, and the general principle upon 
which such elements coalesced was substantially the same. It 
may be stated as a general rule that the English colony in 
America, like the English state in Britain, represented an 
aggregation of counties, and that each county represented 
an aggregation of townships. The hundred — the intermediate 
division between the township and the county — appeared in 
the structure of some of the colonies, but, being unnecessary 
to the local wants of the new land, passed out of view.^ In some 
instances the colony was formed by the coalescence of the local 
communities before a charter was granted ; in others the charter 
was granted first and the colony then subdivided into districts 
as the local communities were organized. The fruit of both 
processes was the same — a dependent state — subdivided 
into counties and townships as the organs of its local adminis- 
tration. The most striking fact that stands out in the history 
of these local communities in the new land is that wherever the 
one became the active agent of local administration, the other, 
while it did not cease to exist, became dormant. In America 
the county and the township did not appear as co-working 
agents dividing the duties of local administration in anything 

ordinate series." Address of Mr. 
Lewis A. Morgan, before Am. Assoc, 
for the Adv. of Science, Boston, 
Aug. 26, 1880. 

* The hundred existed in Vir- 
ginia, Maryland, and maybe else- 
where. See Ingle, "Local Inst, of 



^ Tocqueville, Democracy in Am., 
i, 49. "Upon the township was 
formed the county, composed of 
several towns similarly organized; 
the state, composed of several coun- 
ties, and, finally, the United States, 
composed of several states; each 
organization a body politic, with 
definite governing powers in a sub- 



Va.," /. H. Studies, 3d series, ii-iii, 
41. Bacon, Laws of Maryland, 1638, 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE lOI 

like equal proportions. In the northern colonies, where popu- in the north- 
lation became dense, and where the active spirit of the English ^™ colonies 
yeoman and trader reproduced a system of political life as in the south-' 
closely organized as it was vigorous, the township became the ^™ '^^ 
active organ of local administration, for the simple reason that active^agent. 
its compact organization was better adapted than that of the 
county to the local wants of New England. In the southern col- 
onies, where population was more sparse, and where the south- 
ern planter reproduced the more tranquil life of the English 
country gentleman who had little or nothing to do with the 
life of towns, the county became the active organ of local 
administration, for the reason that it satisfied all of the political 
wants of a rural population.^ While the township was thus 
overshadowed in the southern colonies by county organization, 
the New England county maintained nothing more than a 
shadowy existence as a local district for certain judicial pur- 
poses.2 In the middle colonies the two opposing systems fought 
for the mastery, and the result was a composite system that Composite 
approached nearer than either to the original model by divid- ®^5^^™ '^ 

• , t t .,.,., , middle 

ing between the town and county, in somethmg like equal colonies. 

proportions, the duties of local government. 

During the ten centuries that intervened between the Teu- The township 

tonic conquest and settlement of Britain and the making of the ^^ different 

aspects. 
English settlements in America, the mark, which reappeared 

in Britain as the tun or township, passed through a notable 
transformation. In the process of English feudalization the 
township was transformed into the manor of the lord, and the 
once free townsmen became the lord's tenants, while the greater 
part of the ancient jurisdiction of the tun-moot passed to the 
manorial courts. And more than this, the township in the 
home land became involved in ecclesiastical as well as feudal 
relations. As a division in the territorial organization of the 
church, the township became the parish, and as such its bound- 
aries were used to define the jurisdiction of a single priest: "all The parish 
business that is not manorial is dispatched in vestry meetings, *°^ *** vestry, 
which are, however, primarily meetings of the township for 

* Mr. Freeman, in writing to the There the town was the thing when 

author on this subject, said: "I the ct7y had not swallowed it up." 

found in Virginia people spoke of the * See Washburn, Judicial Hist, of 

county as they do here. In New Mass., 31, note i. 
England the county seemed lost. 



t/ 



102 



TEE AMERICAN CONSTITUTION 



[Ch. 



Townships in 
New Englaad. 



Manors in 
Maryland. 



church purposes." * In that way the tun-moot had ceased to 
exist as a single assembly, and its jurisdiction had been split 
up and absorbed by the parish vestry and manorial courts 
long before the emigration to America began. It is therefore a 
very remarkable fact in the history of institutions that when 
the settlers of New England reproduced the township in the 
new world, they should have reproduced it in its original 
form, unfettered by the feudal and ecclesiastical restraints in 
which it had been encaged for centuries. As a brilliant Ameri- 
can scholar has expressed it, the colonists "were severed now 
from church and from aristocracy. So they had but to discard 
the ecclesiastical and lordly terminology, with such limitations 
as they involved, and reintegrate the separate jurisdictions 
into one, — and forthwith the old assembly of the township, 
founded in immemorial tradition, but revivified by new 
thoughts and purposes, gained through ages of political train- 
ing, emerged into fresh life and entered upon a more glorious 
career." ^ The government of the New England town, like that 
of the Old-English township, is vested in the town-meeting; and 
"a New England town-meeting is essentially the same thing 
as the Homeric dyopt], the Athenian eKKhqa-ia, the Roman 
comitia, the Swiss Landesgemeinde, the English folk- moot." ' 
The fact that the township, stripped of its feudal aspect as the 
manor, and of its ecclesiastical aspect as the parish, reappeared 
in its primitive form upon the soil of New England, must not, 
however, lead to the inference that it did not elsewhere appear in 
each of its discarded characters. The evidence as to the origin 
and structure of old Maryland manors is of a very clear and 
satisfactory character. There even the court baron was not 
wanting. From Bozeman we learn that "one or two rare in- 
stances occurred of the holding of both courts baron and 
courts leet in two distinct manors." * In St. Clement's manor 



1 Stubbs, Const. Hist., i, 85. 
' Fiske, American Political Ideas, 
49. 

• Freeman's "Int. to Am. Inst. 
Hist.," J. H. Studies, 1st series, i, 
16. 

* History of Maryland, ii, 581. 
Therein we are told that "a court 
baron was held at the manor of 
St. Gabriel on the 7th of March, 



1656, by the steward of the lady of 
the manor when one Martin Kirke 
took of the lady of the manor in full 
court, by delivery of the said stew- 
ard, by rod according to the custom 
of the said manor, one messuage, 
having done fealty to the lady, was 
thereby admitted tenant." (MS. 
extracts from the records.) 



III.l EVOLUTION OF THE TYPICAL AMERICAN STATE 103 

a court leet was held at intervals between 1659 and 1672, as 
appears from its manuscript records now in the possession of 
the Maryland Historical Society.^ The evidence is equally 
clear as to the existence in New York of the manorial system and in 
in its Dutch aspect.^ In Virginia the colony was first created as ^^' ^°^^' 
an entirety and then subdivided into self-governing districts 
as rapidly as they were demanded by the growth of popula- 
tion. When the county had finally become crystallized, it w£ls 
divided into parishes. While, as a general rule, the parish was 
a division of the county for religious purposes, its governing 
body, the vestry, had considerable authority in civil affairs. Virginia 
The vestrymen were originally elected by the parishioners ^^"^ ^ 
themselves under the supervision of the sheriff; but as they 
were chosen for an indefinite term, and as it was provided by 
statute in 1661-62 that, in the event of the death or removal 
of any one of them, his place should be filled by the vestry 
itself, the governing body of the Virginia parish ceased to 
be representative, and like its English parent, hardened into 
a close corporation.^ 

Such was the general nature of the process of reproduction America's 
that resulted in the creation of the thirteen English colonies in ^^/^^ to^it-* 
America, which, upon the severance from the mother country, ical science. 
rose to the full stature of sovereign states. In coming into 
being they originated a new principle of constitutional law, 
America's first contribution to the Science of Politics. As the 
colony was created by a royal charter that called into being 
a subordinate law-making body, that body could neither vio- 
late the terms nor transcend the powers of the instrument to 
which it owed its existence. In colonial times "questions some- 
times arose . . . whether the statutes made by these assemblies 
were in excess of the powers conferred by the charter; and, if 

* These records, presented to the Town and County Govt., 43, 48; 
society by Col. B. U. Campbell, are Ingle, Local Institutions of Va., 81- 
printed as an appendix to Old Mary- 83. For the history of the hard- 
land Manors, 31-38. ening process in England, see Sir T. 

* See "Dutch Village Commun- Erskine May, Const. Hist., ii, 461. 
ities on the Hudson River," Elting, A partial remedy for that abuse of 
/. H. Studies, 4th series, i, 12-16; parochial government in England 
O'Callaghan, Hist, of New Nether- was supplied in 1831 by Sir J. 
lands, i, 320. Hobhouse's Vestry Act, i and 2 

» See Rev. P. Slaughter's Hist, of Will. IV, c. 60. 
Bristol Parish, 2d ed., 4; Channing, 



104 



THE AMERICAN CONSTITUTION 



ICh. 



Invalidity 
of colonial 
statutes. 



State constitu- 
tions of 1776. 



Earliest cases 
declaring state 
statutes void. 



the statutes were found in excess, they were held invalid by the 
courts, that is to say, in the first instance by the colonial 
courts, or, if the matter was carried to England, by the Privy 
Council." ^ After the severance from the mother country, that 
power to annul a statute, originally vested in the Privy Coun- 
cil, was simply assumed by the supreme courts of the eman- 
cipated states. On May 10, 1776, the Continental Congress 
recommended to the several conventions and assemblies of the 
colonies the establishment of independent governments "for 
maintenance of internal peace and the defense of their lives, 
liberties, and properties" ; ^ and before the end of that year the 
greater part of the colonies had adopted written constitutions 
in which the powers of the state were restrained by a set of 
limitations in favor of the rights of the citizen as those rights 
were then defined in English constitutional law. But no one of 
those constitutions gave to the supreme court of a state, in 
express terms, the right to annul an invalid enactment. The 
judges established that right by a process of reasoning of which 
the following is perhaps the earliest example. In Com. v. 
Caton,' a case that came before the Court of Appeals of Vir- 
ginia in November, 1782, Wythe, J., said: "Nay, more, if the 
whole legislature, an event to be deprecated, should attempt to 
overleap the bounds prescribed to them by the people, I, in 
administering the public justice of the country, will meet the 
united powers, at my seat in this tribunal; and, pointing to the 
constitution, will say to them here is the limit of your author- 
ity; and hither shall you go, but no further." Rhode Island 
retained the charter granted to her in 1663 as her constitution 
down to 1842; and in Trevett v. Weeden an act was declared 
void in 1786 because it impaired the right of trial by jury 
guaranteed by that charter.* In Bayard v. Singleton,^ decided 
by the Supreme Court of North Carolina in 1787, an act was 
likewise annulled because destructive of the right of trial by 
jury; and in Bowman v. Middleton,® decided by the Supreme 
Court of South Carolina in 1792, it was held that an act passed 
by the colonial legislature, in 17 12, was ipso facto void because 

* Bryce, The Am. Commonwealth, * See Cooley, Const. Lim., p. 26, 
i, 243. note I , for comments on that case. 

* See Charters and Constitutions, ^ i N. C. 42 (i Martin, pt. i, p. 
i, 3. 48). 

* 4 Call (Va.), 5-21. « I Bay, 252. 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE 105 

in contravention of Magna Carta. Thus the principles became Constitutional 
fundamental in American constitutional law (i) that every feStSe^°° 
state legislature is endowed by its very nature with all the power. 
omnipotence of the English Parliament, save in so far as that 
omnipotence is restrained by the express terms of constitu- 
tional limitations ; ^ (2) that whenever the legislature of a state 
violates such limitations, its supreme court possesses the inher- 
ent and implied power to annul its act for that reason. A writ- 
ten constitution, as a complete system of limitations upon the 
powers of a state to invade the "rights of man," is an invention 
that arose out of the politics of the French Revolution; but the 
right of a court to annul the act of a state when, in its judg- 
ment, the limitations imposed by the constitution have been 
exceeded, is purely an American invention. That invention. Invention 
originating with the states, as above set forth, was lifted into °"t^°th tates 
a higher sphere when the existing Federal Constitution was 
adopted. Without any express authority whatever from that\ 
Constitution, the Supreme Court of the United States, by 
repeating the process of reasoning originally employed by 
Chancellor Wythe, reached the conclusion, for the first time in 
the world's history, that a judicial tribunal can put the stamp 
of nullity on a national law whenever in its judgment it exceeds . 
the limits of the national Constitution. 

The fact that the soil upon which the English colonies in American ; , 

America were planted came to them through royal grants, ^ the colo3Ll°rights // 
fact that every form of political organization established 
thereon rested upon royal charters, were the foundation-stones 
upon which the colonists gradually built up, in the light of 
their actual experience, their theory of the political relations 
that bound them to the mother country. Their rights as Eng- 
lishmen, endowed with "all the liberties, franchises, and im- 
munities of free denizens and natural subjects," flowed from 
their charters, which, as between themselves and the Crown, 
were irrevocable though not non-forfeitable contracts. The 
earliest form of direct legislative control to which any of the 
colonists were subjected, in the form of ordinances or instruc- 

^ See Cooley's Const. Lim., 107 ies was not in the people of England 

(5th ed.), and cases cited; Mangan v. nor in the state, but in the Crown, 

State, 76 Ala. 60; Davis v. State, and descended with it. The Crown 

68 Ala. 58. alone could sell or give away these 

2 "The title to the English colon- lands." Nar. and Crit. Hist., vi, 3. 



t- 



io6 



THE AMERICAN CONSTITUTION 



[Ch. 



The Crown 
regarded as 
the only tie 
that bound 
the colonies 
to England. 



^1 English 

I ,' theory of 
\ X colonial 
'• ' rights. 



tions for their government, emanated, not from the law-making 
power of the King in Parliament, but from the King in Council. 
And at a later day when the colonial assemblies began the 
work of legislation on their own account, the validity of their 
enactments depended, not upon the approval of the English 
Parliament, but upon that of the royal governor, who stood as 
the ever-present representative of his royal master. With the 
founding of the colonies, and with the organization of their 
political systems, the Crown had everything to do, the Parlia- 
ment practically nothing. Apart from the control which it had 
exerted from the beginning over their external affairs in mat- 
ters of trade and navigation, the colonies, prior to the latter 
part of the eighteenth century, had not been drawn within the 
widening circle of its imperial authority. The whole tendency 
of their early experience was to lead the colonies to believe 
that the Crown was the only tie that bound them to the 
mother country; that to each one of them the King stood in 
the direct relation of chief executive; that to him alone duties 
were due; and that the only proper mediums of communica- 
tion between the Crown and colonies were the colonial parlia- 
ments. In their local legislatures the colonists had learned 
how to tax themselves, and how to regulate their home affairs 
through laws of their own making.^ Losing sight of the fact 
that England had grown into an empire since the work of 
colonization began, the colonists clave to the earlier concep- 
tion which regarded the home Parliament simply as the legis- 
lative organ of the United Kingdom. As such they held that 
it had no right to invade the jurisdictions of their colonial 
assemblies in order to legislate directly upon their internal 
concerns. 

While remoteness and self-interest were alike intensifying 
in the colonial mind this reasonable yet narrow conception, 
the growth of English dominion was leading English states- 
men at home to elaborate a theory which, in the gorgeous 
language of Burke, clothed the English Parliament with an 
"imperial character, in which, as from the throne of Heaven, 
she superintends all the several inferior legislatures, and 
guides and controls them all without annihilating any." ^ In the 

^ That is well put by Fiske in The * Speech on American taxation, 

Critical Period, 63. April 19, 1774. 



III.] EVOLUTION OF THE TYPICAL AMERICAN STATE I07 

hands of a practical teix-loving statesman like Grenville this 
imperial theory was not confined to mere supervision ; in such 
hands it was held to mean that the Imperial Parliament could 
at any moment override the acts of the colonial assemblies, 
without consulting their wishes at all, and tax and legislate for 
the people of Massachusetts and Virginia just as it could for 
the people of Kent and Middlesex. Out of the conflict that Out of the 
finally arose between the English and colonial theories as to the t^ewar^the 
practical omnipotence of the Imperial Parliament over self- Revolution, 
governing communities beyond the four seas, grew the war of 
the Revolution, and the severance of the colonies from the 
mother country.^ 

1 See Green's statement of the that stated by Turgot, who said that 

conflicting theories, Hist, of the Eng. " colonies are like fruits, which cling 

People, iv, 226-230. While the con- to the tree only till they ripen. As 

flict of theory as to the jurisdic- soon as America can take care of 

tionof the Imperial Parliament was itself, it will do what Carthage did." 

the visible and technical cause of CEuvresdeM.Tur got (Pa,ns, 1808-11), 

separation, was not the real cause ii, 19, 66. 



CHAPTER IV 



FEDERALISM AS A SYSTEM OF GOVERNMENT 



Effects of 
geography 
on federation. 



Britain and 

America 

contrasted. 



A federal 
union defined. 



The physiography of North America predetermined the fact 
that the thirteen emancipated colonies were to unite in a 
federal and not in a consolidated state. The group of colonial 
commonwealths, as they appear upon our Atlantic seaboard 
toward the close of the eighteenth century, were, in internal 
organization, a substantial reproduction of that older group 
of heptarchic kingdoms as they appear in Britain in the ninth. 
And yet, despite that likeness, the younger group in their 
efforts at union were unable to look to the older group for light 
or guidance, for the reason that the widely different geo- 
graphical conditions by which they were respectively sur- 
rounded had prescribed for each a widely different destiny. 
Confined within the narrow and impassable bounds of an 
island world, it became the manifest destiny of the English 
states in Britain, advancing in the path of political aggrega- 
tion, to coalesce in the formation of a single consolidated king- 
dom. Situated on the shores of an almost boundless continent, 
it became the manifest destiny of the English states in America, 
advancing in the path of political confederation, to unite in 
the flexible bonds of a federal system capable of almost unlim- 
ited expansion.^ 

In order the more clearly to comprehend the process through 
which federalism has finally taken on in America its most 
perfect form, it will be helpful to glance for a moment at its 
history as a system of government prior to the making of its 
last and most successful experiment. A federal union may be 
defined to be the joining- together of sovereign states under any 
form of confederation more permanent than a mere alliance, 
wherein each state surrenders a part of its sovereignty for the 
common good of all, without the surrender of its individual 
right to regulate such internal affairs as concern it only. It is 
the very opposite of that kind of union which is brought about 
^ See Fiske, Am. Political Ideas, chap. iii. 



6- 
IV.l FEDERALISM AS A SYSTEM OF GOVERNMENT 109 

by the incorporation or fusion of two or more states or cities 
into a single body with equal rights common to all. The ideal 
of a perfect federal government may be defined to be one 
which is but a single state in all matters that concern the 
federal body as a whole, and yet a group of states perfectly 
independent in all matters which concern each member of 
the group as a local self-governing community. To the ideal An ideal federal 
federal government, the federal commonwealths that have government, 
actually existed in history can only be regarded as more or 
less close approximations. Out of the entire group of such 
commonwealths four have been specially commended for study 
to students of the history of federal government, for the reason 
that their constitutions illustrate the closest approaches that 
have so far been made to the perfect federal ideal. These four Four notable 
are the Achaian League (b.c. 281-146) , the Confederation of the approaches. 
Swiss Cantons (from 1291); the Seven United Provinces of 
the Netherlands (i 579-1 795) ; and the United States of North 
America (from 1789).^ In considering the internal structures 
of these more perfect federal systems a sharp distinction must 
be drawn between those in which the central power deals only 
with the government of states as states, and those in which the 
central power acts directly upon all citizens. According to the 
manner in which the central power exercises its special func- 
tions federal governments are usually divided into two classes. 
Those in which the central power is only authorized to issue 
requisitions to the state government for each to carry out are 
known as "confederated states," while those which are sover- Confederated 
eign within their spheres, and which can enforce such sover- ^*^*"- 
eignty directly upon every citizen, are known as "composite Composite 
states." 2 '^^^^ 

When we turn to the Mediterranean world in which the Sci- The Greek 
ence of Politics was born, we there find the dominant political ^ealtib™™™' 
idea embodied in the independent city — the city-common- 
wealth — which stood toward all other cities as a sovereign 

* See Freeman, History of Federal ville says the government of the 

Government, i, 5, 6, 1 1, 12, and United States is neither exactly 

notes. national nor exactly federal: it is 

' As to that distinction, see J. S. a novel thing, — "«» gouvernement 

Mill, Rep. Govt., p. 301; Prof. Bar- national incomplet." See upon the 

nard, Lectures on American War, whole subject. The Federalist, nos. 

Oxford, 1861, pp. 68-72. Tocque- xxxviii, xxxix. 



no 



THE AMERICAN CONSTITUTION 



[Ch. 



Aristotle's 
" Constitu- 
tions." 



The Greece 
of Polybios. 



Achaian 
League. 



State whose internal affairs were regulated by its own domestic 
constitution. Such was the only conception of the state with 
which Aristotle, the acknowledged founder of political sci- 
ence,^ was acquainted; and in obedience to his practical 
temper he made a collection called the " Constitutions," ^ sup- 
posed to have contained a description of the codes of a hundred 
and fifty-eight city-states bounded by their own walls, and like 
the mediaeval republics of Italy, living for centuries in sight of 
each other without a thought of union except through conquest 
of the weaker by the stronger. Not until the Macedonian 
supremacy raised up a military empire on their own frontier, 
stronger and far more dangerous than that of Persia, did the 
statesmen of Greece learn the necessity of confederation for 
the safety of their isolated and self-governing city commun- 
ities. Of such unions the two most celebrated were the Achaian 
and the ^tolian leagues. The scholars who have in our own 
time passed beyond the Greece of Thucydides (471-400 B.C.) 
to the Greece of Polybios ^ (about 203-121 B.C.), who have 
passed beyond the period in which the independent city-com- 
monwealth was the dominant political idea into the less bril- 
liant period of Hellenic freedom occupied by the history of 
Greek federalism, have at last put before us in a tangible form 
the history of at least one ancient federal league whose internal 
structure entitles it to be ranked among "composite states." 
Careful analysis of the constitution of the Achaian League 
seems to have clearly established the fact that its government 
was really national ; that there was an Achaian nation, with a 
national chief, a national assembly, and national tribunals ; that 
every Achaian citizen owed a direct allegiance to the central 
authority as a citizen of the league itself, and not merely of one 
of the cities that composed it.* The supreme power was vested 



* See Pollock, Hist. Science of 
Politics, I. 

* The fragments that remain 
have been collected and annotated 
by Neumann, and are contained in 
Bekker's Oxford edition of Aris- 
totle. 

* Mr. Freeman, after referring to 
Grote's depreciation of The Greece of 
Polybios (xii, 527-530), laments the 
fact that his great work "lies almost 



untouched in our universities," 
Fed. Govt., pp. 219-227, note i. For 
Mommsen's estimate of Polybios 
as an historian, see Romische Ge- 
schichte, ii, 427. 

* "The Achaian League was, in 
German technical language, a Bun- 
desstaat, and not a mere Staaten- 
bund." Freeman, Hist, of Fed. Govt., 
i, 259, citing Helwing, 237. 



IV.l FEDERALISM AS A SYSTEM OF GOVERNMENT III 

in a single primary assembly that met at stated intervals, and 

in a general {XTpaTr)y6^) elected for a stated term like the 

American President, who was assisted by ten magistrates, who 

formed around him a permanent cabinet or council. Although 

the central assembly did undoubtedly levy federal taxes Federal taxes 

(at KOLval elcrchopai),^ the probabilities are that such taxes ^.^^^ ''^'i^si- 
^ T r y' t' tjQQ system. 

were collected not by federal tax collectors, but through the 
requisition system under which each city was permitted to 
raise its quota through its own local machinery. The Achaian 
League can therefore only hold its place among "composite 
states" by virtue of the fact that its national government acted 
directly on the citizen, and not by reason of the fact that it had 
passed beyond the requisition stage to that in which a federal 
government collects its taxes through the direct agency of its 
own officers. And yet, whatever general resemblance may be 
traced between the Achaian League (the product of a union 
of city-commonwealths) and the United States (the product of 
the union of modern states), the fact remains that the his- No conscious 
tory of the one had no direct or conscious influence upon the ^en\Si°° 
making of the other. In 1787 the history of Greek federalism federalism. 
was really a sealed book. Such scanty knowledge as the 
founders did possess seems to have been chiefly drawn from the 
little work of the Abb4 Mably, "Observations sur I'histoire de 
Grhce."^ The "History of Greek Federations," first written 
by Edward A. Freeman, did not appear until the publication 
of the first volume of his great "History of Federal Govern- 
ment" in 1863. The lack of knowledge on the subject is 
frankly confessed by Madison and Hamilton who have told us in 
the " Federalist " ^ that " could the interior structure and regular 
operation of the Achaian League be ascertained, it is probable 
that more light might be thrown by it on the science of federal 
government than by any of the like experiments with which 
we are acquainted." The only federal governments with whose Founders only 
internal organizations the builders of our Federal Republic were j ^^J J"*^ 
really familiar, and whose histories had any practical effect leagues. 
upon their work, were those that had grown up between the 
Low-Dutch communities at the mouth of the Rhine, and 
between the High-Dutch communities in the mountains of 

» Pol., iv, 60. ' No. xviii. 

* See Federalist, nos. mx, xx. 



Iia TlIF .WfFKTCAN co^sTirrriON ICn. 

S\vit/otl.it\il. .uul upon ihi" pl.iins oi (.".ormany.' Down to the 
making nt llu> snoml C'oiisiidUuMi oi the I'nitoil Statos the 
C"t)i\t\HKMalu>n o( Swiss C'autiMis, the Ihiitod Tun nuis ot tho 
NotlnMlauils. A\\i\ (he C ".ri i\i.ui C\>nti\U-t at ion iim11>- ti-piosoilttxi 
the tiXal aihauii' mavlo \n itu- iiiihUmu woiUl in tho sliuoture 
t>t tiHltMal vio^•^M•nnuMlts. Suih aiKaiuo was iMnlnnhcHl in the 
All o|vr:»t(Nl iiliM o[ A [cAc\.\\ :.\>lcn\ lu.ulc up ot a union ot s(aU~s, oilu-s. or 
oil Mt;»i(>si>r ihstiiils, iiM>iosontati\os tioni w hioh iotuposcH.1 a sin\;lo tovlcral 

il(l(-., \>v>t 0\\ ' 1 1 1 ' 1 

tiuUvuiurtU assoinbh' whoso supremo power oouUl bo oroiiiiht to boar tiot 

upon iiuliN uhial ii(i.i-ns, but onl\ upini st.itos or oidos as siu'h. 

The tnuiLunonlal piu\vipK' upon wliuh all suoh tabiios tosttxl 

was tho roiiuisition sNstotn, muhM" whioh tlio tinioral hoail was 

simply otulowoil with ihi- powoi lo make iov ti\loial put poses 

requisitiv>ns t\n men auvl nione> upon the stales or lities eoui- 

pi^siuii the loaj^no, while tho states aK>ne. in tlieit eoi potato 

iMpaeitN', p^>ss^^.^-^\l llie pow i-i to ontoiei' tlietu. 

M>Hleiu <t:\tf Pming the innuensi^ uUiM\al that ».liN iilos tho history ot the 

.»•. tiu- lutivvu. .jneiont r.uvk leaiiues triMU that of the eomparatively mixlorn 

Teuloi\ie loai;ues, tlti^ ancient >.\n\i\^p(ion ot tho state as a eity- 

iHimmonwoalth >ia\o w.i> to the nuHletii eoiteeption o\ the 

state as a nation oeeupyitiii a ilotinite ati\t ot tciiitot> with 

li\i\l v:ev>);raphieal bouuvlaties. tho state .is known to lUiHlorn 

intoi national law.'-' That eoneepiion y;iailuall> atose out ot tho 

settlemei\ts mailo by the IVutoiiie natii>ns u\M.n\ the wnek oi 

tho Rotuatt I'mpiicv At the tii\ie r.ieitus wtote. tho typieal 

Totitouie tiibi- V' - ■■''-^'' ^v.is a ihstlwvt eonunotnvoalth, tho 

TVutnnlc trlhc* lariix^st anil hiv^ltesl politieal a>i>:tev;ate. Not until neatly a 

s^thrixvimto tvntuTA latot woto thoso seatten\i tribes liathotixl itvto larmier 

U*tU\lX» , , ' • ,»•! , 111 

whi^les into nations-^ When that stay^o was teael\i\l. wiien 
tribes wete tuso.l into the hij^her poUtii-.il unit, the itation. the 
prin\itive IVntiMtie eot\iYption ot tho state, widemHl into its lull 
at\il t'mal doN eU^pmont . Hut another stai^o of i^rowth had >et to 
be passc\l betote the new unit, whieh thus atose out of an aji)jTe- 

» Sv\ - .- \)\, XX. c»{y-ovMumon\vt\\lth. — in Wutantc 

* r.-»vU>r, /wif'MvJy'i.'H.W PMU Ututs tho prvxhu-t Ota union ot" tribes* 

Liixv. i»up. \'\. ■• Vlto Mixlem Stat* was not A ovty at all. but a t^atu^n, 

" The lVntoi\sius,-»c\l tuMU tho tribal 

-.'s.'ktH HHii •;'«> st.xjix^ into tho n.uion.tl st.ij^o with- 

\'\' _;.\;, _UM In out ovor »iO\;^v; : ' .-ity 

•-■.'.n iv-;',i;v.v,!.is tlu' st.ljlx'At all." (.'.-.... .i*.S, 

piwiuot v't a iinivMi v\t tnlvs was a lOl. 



a» t 


ho Na 


« 


/ott^v 


.V. . 




tlu- 


\ . . , 



IV.] FEDERALISM AS A SYSTEM OF GOVERNMENT 113 

gation of tribes, reached the full modern conception of the 
state as a nation possessing a definite jxirtion of the earth's 
surface with fixed geographical boundaries. The fact must be 
borne in mind that the primary bond uniting the people who 
com^xjsed a Teutonic nation was a personal one; the national 
king was first among the people, the embcxiiment of the na- 
tional being, but not the king of a particular area or region of 
territory. Tlie idea of sovereignty was not associated in the 
Teutonic mind with dominion over a particular portion or sub- 
division of the earth's surface. The Merovingian line of chief- 
tains were not Kings of France, tiiey were Kings of tlie Franks; 
Alaric was King of the Goths wherever the Goths happened to 
be, whether ujwn the banks of the Tiber, the Tagus, or the 
Danube.' The leading idea which seems to have prevailed 
among the conquering nations that settled down u{X)n the 
wreck of Rome was that they were simply encamjx^ on the 
land whose possession they had won. The conception of sover- Tribal 
eignty the Teutonic nations brought with them from the forest **^^"""«"*J'- 
and the steppe was distinctly tribal and national, and not ter- 
ritorial. The general nature of the transition whereby the 
primitive notion of tribal sovereignty was gradually super- 
seded by that of territorial sovereignty has been described as 
a movement from personal to territorial tirgani/ation; ' from 
a state of things in which personal freedom and political rights 
were the dominant ideas to a state of things in which those 
ideas have become bound up with and subservient to the {">os- 
session of land.''' The most striking single result of the transi- 
tion — which, for the want of a better term, has lieen called 
"the process of feudalization" * — is that the elective chief of 
the nation, the primitive embodiment of the tribal sovereignty, 
is gradually transformed into the hereditary lord of a given 
area of land. The new conception of sovereignty, which thus Territorial 
grew out of "the process of feudalization," did not become ^^j*^'^*"'^^."^'^'^ 
established, however, until after the breaking-up of the "the process 
Empire of Charles the Great, out of whose fragments have of /cuciaiU- 
arisen most of the states of modern Europe. The completion of 

* Maine. Ancient Law, p. 100; * Stnhbs, Const. Hisl., i, 166. 
Freeman, Norm. Conq., i, 53, i < Maine, ViJUif^e - Communities, 

* Palgrave, E«g. Commonwealth, lecture v, "The Pixxress of Fcudal- 
pt. i, p. 62. ization." 



114 



THE AMERICAN CONSTITUTION 



[Ch. 



Form assume*.! 
by the mon- 
archy in 
Fiauco rt'prvi- 
duial. 



How fnlcnil 
unions are 
classut'ieil. 



^UuiUnbuitd. 



the transition is marked by the accession of the Capetian 
dynasty in France. When the liundred years' struggle between 
the Dukes of Paris and the descendants of Charles the Great 
ended in the triumph of Hugh Capet, he not only assumed the 
dynastic title of King of the French, but he also styled himself 
King of I'^ance.' Hugh Capet and his descendants were kings 
in the new territorial sense ; they were kings who stood in the 
same relation to the land over which they ruled as the baron 
to his estate, the tenant to his freehold. The form thus assumed 
by the monarchy in France was reproduced in each subsequent 
dominion established or consolidated; and thus has arisen the 
state system of modern Europe in which the idea of territorial 
sovereignty is the basis of all international relations.^ Until we 
have grasped the modern conception of the state as the nation, 
it is impossible to ditTerentiate the Teutonic leagues based on 
that conception from the ancient Greek leagues based on that 
widely dift'erent conception of the state known as the city- 
commonwealth. The modern conception of the state, the basis 
of the c\islin_u inlcnuuioiu)! s\s(em, may be said to be the out- 
come of the " piocoss oi tcudali/ation" through which the Teu- 
toi\ic n.Uiiins passed alter their settlements within the limits 
of tile RcMuau luirope. 

With the foregoing clearly in view it is easy to explain the 
principles upon which feiloral states ate elassit'ied by writers on 
international law. The less strietK ini;aiu.ed union or league 
resting on the requisition s> stem — of the type prevailing 
prior to the making of the second Constitution of the United 
States — is usualK st\U\l a cvnifederated state, or in German 
technical language a SiddtmhuiuL The leading characteristic 



* "Tho inxixirtant chatik^o tv- 
curnxl whoti the foiulal prinoo of a 
liinitc*.! torritory svirrouiuliuij Paris 
Ivjiuii, fn>m tho aividont of his unit- 
in»i an unusual iumuIht of sovohmv^u- 
tios in his own poison, lo i\ill him- 
st^lf Kinji of Franco, M tho s.imo 
tinio that ho usur^xxl from tho 
oarHor houso thoir dynastic titlo 
of Kinjis of tho KaMU-h." Maine, 
Ancirnt Law, p. 104. Mr. Frooinan, 
in criticising; that stateniont, \vaito 
to the author as follows: "I should 
not say that what Maine says about 



J"v(-.v Francorum and Rtx Francia 
was other than ri^ht in a general 
way. Those things came in grad- 
ually. Ri>i de France comes in pa-tty 
early — as early as Waco. I doubt 
whether Rfx Franciit is over used, 
till Henri l\"s/?«'.v Fraticurct Namr- 
nr as a formal L<itin titlo." Stv also 
Norman Conquest, i, appendix, note 

M. P- 305- 

' Vpon tho whole subject of 
"territorial sovoaMgnty, " and its re- 
lations to nn.Hlern international law, 
see Maine, Ancient Law, 99-108. 



IV.] FEDERALISM AS A SYSTEM OF GOVERNMENT 



115 



of such a confederation, so far as its internal relations are con- 
cerned, is that the state does not entirely surrender to the cen- 
tral power its right of dealing directly with other states. Only 
after^reserving to itself the right thus to dispose of a certain 
part of its foreign affairs is the control over the remainder sur- 
rendered to the central authority. Originally both the Swiss 
and German confederations belonged to that class. While 
the final outcome of the struggle of the Swiss Cantons to eman- g^is^ Con- 
cipate themselves from the toils of the feudal system, begun federation. 
early in the fourteenth century, was assured by the accession to 
the league in 1513 of the last of those thirteen German Cantons 
which were to constitute its central membership down to the 
French Revolution, it was not until its recognition by the great 
powers in the Treaty of Westphalia in 1648 that the Swiss Con- 
federation became in the eyes of public law a sovereign state.' 
Under the Constitution of the league as it existed prior to 1798 
the several cantons retained the right to make separate treaties 
with foreign powers and with each other ; and under the new Act 
of Confederation, concluded in August, 1815, between twenty- 
two cantons, the right of each was reserved to conclude any 
alliance which was not prejudicial to the rights of the general 
Confederation or of any of its members. In the same way the 
Germanic Constitution as modified at the Peace of Westphalia, Germanic 
which converted the Empire into a confederation of the loosest Confedcra- 
sort,^ gave to the members of the Diet, by whose votes the 
Emperor was to be governed, the right not only to contract 
alliances among themselves but with foreign princes, provided 
no prejudice resulted thereby to the Emperor and Empire. 
Under the Constitution of the new German Confederation, 
embraced in the final act of the Congress of Vienna (18 15), the 
right was still retained by each state to declare and carry on 
war and to negotiate peace with any foreign power to the Con- 
federation, and to make its own alliances, provided no injury 
was thereby inflicted upon the Confederation itself, or upon 
any of its members.' 



tioD. 



» See Wilson, The State, sees. 379, 
507. 508. 

* See Br^xe, Holy Roman Empire, 
324- 

* E^ch state also retained its 
rights of legation as to foreign pow- 



ers and to its co-states. Kliiber, 
Oeffentliches Rechis des Deutschen 
Bundes, pp. 137-143. A good com- 
mentary on the Final Act may be 
found in Twiss, i, 71-74. 



ii6 



THE AMERICAN CONSTITUTION 



[Ch. 



United Pro- 
vinces of the 
Netherlands. 



States-General 
and its powers. 



Criticism of 
Grotius; 



of the Abb£ 
Mably. 



The Low-Dutch League, with whose infirmities the founders 
were specially familiar, was that known as the Seven United 
Provinces of the Netherlands, a Staatenhund (i 579-1 795), com- 
posed of seven coequal and sovereign states, each state or pro- 
vince representing an aggregation of equal and independent 
cities. The sovereignty of the league was vested in the States- 
General, consisting usually of about fifty deputies appointed 
by the provinces, which was armed with the power to make 
treaties and alliances, to make peace and war, to raise armies 
and equip fleets. But no federal taxes could be levied. When 
an attempt was made to establish a general tax, to be adminis- 
tered by the federal authority, it failed. The league had no 
resource but the requisition system; it could only ascertain 
quotas and demand contributions; and when the sovereign 
powers were to be exercised by the States-General, unanimity 
and the sanction of their constituents were necessary. "It was 
long ago remarked by Grotius that nothing but the hatred of 
his countrymen to the House of Austria kept them from being 
ruined by the vices of their Constitution. The union of 
Utrecht, says another respectable writer, reposes an authority 
in the States-General, seemingly sufiicient to secure harmony, 
but the jealousies in each province render the practice very 
different from the theory. The same instrument, says another, 
obliges each province to levy certain contributions; but this 
article never could, and probably never will be executed, 
because the inland provinces, who have little commerce, can- 
not pay an equal quota. In matters of contribution, it is the 
practice to waive the articles of the Constitution. The danger 
of delay obliges the consenting provinces to furnish their 
quotas without waiting for the others, and then to obtain 
reimbursement from the others by deputations which are fre- 
quent, or otherwise, as they can. The great wealth and influ- 
ence of the province of Holland enable her to effect both those 
purposes. It has more than once happened that the deficiencies 
had to be ultimately collected at the point of the bayonet." ^ 
The Abb6 Mably says that "Under such a government the 
union could never have subsisted, if the provinces had not a 
spring within themselves, capable of quickening their tardiness, 

* The Federalist, no. xx, entitled, "Example of the United Netherlands." 
Hamilton and Madison (Ford ed.), 1 19-123. See also 236, 503. 



I v.) FEDERALISM AS A SYSTEM OF GOVERNMENT I17 

and compelling them to the same way of thinking. This spring 

is the StatlthoUlcr," who in his political capacity had authority stjultholdcr 

to settle disi)utcs between the provinces when other means "'"' '*'* 
, ., , . 1 1 11 • 1 t r 1 poweri. 

failed; to assist at llie deliberations and conterences oi the 

States-General, to give audiences to foreign ambassadors, and 
to keep agents for his particular affairs at foreign courts. In his 
military capacity he was commander-in-chief of the federal 
troops, with a general power to direct military affairs; while 
in his marine capacity he was admiral-general, with a corre- 
sponding power to direct naval forces and other naval affairs. 
The weakest [)art of this Constitution, perhaps, was that which 
reciuired unanimity as a condition precedent to the exercise of 
the treaty-making powers. In that way, in 1726, the Treaty 
of Hanover was delayed a whole year; in 1648 the treaty in 
which the independence of the Netherlands was involved was 
concluded without the consent of Zealand; and in 1688 the 
States-General, overleaping their constitutional bonds, con- 
cluded a treaty of themselves at the risk of their heads. It is 
not strange therefore that Sir William Temple, who was him- "Obncrva- 

self a foreign minister, should say in his notable "Observations II','"" ' "' ^',' 
" ' •' , Wm. Icmplc. 

upon the United Provinces of the Netherlands," that foreign 
ministers elude matters taken ad rcjcraulum, by tampering 
with the provinces and cities. By reason of such disabilities 
federalism, as a system of government, stood very low in the 
estimate of mankind at the close of the eighteenth century. 
After the flight of the Stadtholder to England in 1795, the 
republican party in the provinces .so reorganized the govern- 
ment as to bring it into harmony with that of Paris. The 
Batavian Republic came into being in close alliance with 
France under a new constitution that swept away the ancient 
system of representative government, the stadtholderate, and 
the offices of captain and admiral-general. A fair and open 
representation was then established. Our first I'Vderal Consti- 
tution was patterned after the ancient and discredited type as 
embodied in the constitutions of the Confederation of Swiss 
Cantons and the United Provinces of the Netherlands. From 
the inaugural address of President John Adams, 1797, we learn 
that "the Confederation which was early felt to be necessary 
was prepared from the models of the Batavian and Helvetic 
Confederacies, the only examples which remain with any detail 



Il8 THE AMERICAN CONSTITUTION 

and precision in history, and certainly the only ones which 
the people at large had ever considered. But reflecting on the 
striking difference in so many particulars between this country 
and most where a courier may go from the seat of govern- 
ment to the frontier in a single day, it was then certainly fore- 
seen by some who assisted in Congress at the formation of it 
that it could not be durable." ^ 

^ Messages and Papers of the Pre- topographical position; by their indi- 

sidents, 1789-1897, i, 228. In com- vidual weakness and insignificance; 

menting on the Swiss Confederacy by the fear of powerful neighbors, 

in the Federalist, no. xix, Hamilton to one of which they were formerly 

and Madison say: "They are kept subject." 
together by the peculiarity of their 



CHAPTER V 



AMERICAN CONFEDERATIONS FROM 1643 TO 1777 



Just as the pressure of a common danger compelled the 
Greek cities to draw together in leagues for defensive purposes, 
a like pressure forced the English colonies in America to unite 
for common defense against the hostile savages in their rear, 
and also against the hostile colonists of other European na- 
tions, whose interei^ts conflicted with their own. The difficult- 
ies and dangers growing out of that condition of things brought 
about the formation of the first American Confederacy. No 
sooner had the four New England colonies of Massachusetts, 
Connecticut, New Haven, and Plymouth completed their ex- 
istence than their disputes between themselves, and their 
hostilities with the Dutch in New Netherland, growing out of 
encroachments on their territory, with the French in Canada, 
arising out of conflicting grants, and with the Indians, im- 
pelled them, "encompassed by people of several nations and 
strange languages," to enter "into a consociation for mutual 
help and strength." The federal constitution of this short- 
lived league, formed upon the requisition plan, was embodied 
in formal articles of confederation,^ eleven in number, which 
were agreed upon at Boston, in May, 1643. It was provided 
that the affairs of the confederacy should be managed by a 
board of federal commissioners, and that the members of the 
league should be known henceforth as the United Colonies of 
New England,^ a title taken no doubt from that of the United 
Provinces of the Netherlands.' 



United Colon- 
ies of New 
England. 



* They were first printed in 1656 
in London, in Governor Eaton's 
code entitled New Haven's Settling in 
New England. For the text of the 
articles, see Appendix i. 

' As to the history and structure 
of that federation, see "Acts of 
the Federal Commissioners," which 
form the ninth and tenth volumes 
of the Plymouth Records; Doyle, 



English Colonies in America, Puri- 
tan, etc., i, 220-265; Nar. and Crit. 
History, iii, 315, 334, 338, 354, 373; 
Memorial Hist, of Boston, i, 299. 

* Plymouth "joined in the New 
England Confederation of 1643, ^^^ 
though the idea sprang from an- 
other quarter, it is probable that the 
form was influenced by suggestions 
from the Plymouth men, derived 



120 



THE AMERICAN CONSTITUTION 



[Ch. 



Albany con- 
vention of 
1684. 



Albany meet- 
ing of 1694. 



Penn's plan 
of 1697. 



Flan of 1721. 



Clinton's pro- 
posals of 1744 
and 1752. 



Common danger from the Indians gave the next impulse to 
collective action that resulted in a convention at Albany in 
1,684, in which representatives of Massachusetts, New York, 
Maryland, and Virginia concerted measures of defense against 
the Five Nations that extended from North Carolina to the 
northern boundaries of New England; ^ and in 1694 there 
was another meeting at Albany in which commissioners from 
Massachusetts, Connecticut, New York, and New Jersey met to 
frame a treaty with the Five Nations, from whose lands rivers 
flowed as warpaths in every direction.^ The practical efforts 
thus made to consolidate power for common defense were soon 
followed by various theoretical plans for more perfect unions. 
In 1696 the newly created board of trade, of which John Locke 
was a member, suggested the appointment of a captain-general 
of all the forces on the continent, with such powers as could be 
exercised by a constitutional king; and in 1697 William Penn 
appeared before the board and advised an annual "congress" 
of two delegates from each one of the American provinces, to 
determine by a plurality vote the ways and means for sup- 
porting their union, providing for their safety, and regulating 
their commerce.' When in 171 1 a temporary emergency 
revived the subject, the governors of New England assembled 
at New London to determine the quotas of their respective 
colonies for a proposed expedition against Canada, and later 
in the year New York was invited to another conference, but 
it came to naught. In 1721, in order to secure the necessary 
cooperation of the colonies in the pending struggle between 
England and France for the possession of North America, a 
plan was devised for placing a captain-general over the colon- 
ies, and for a general council to which each provincial assem- 
bly should send two of its members.* The former in conjunc- 
tion with the latter was to alter the quotas of men and money 
which the several assemblies were to raise by their own author- 
ities. In June, 1744, George Clinton, of New York, submitted 



from their experience in the United 
Netherlands." Nar. and Crit. Hist., 
iii, 281. 

1 See Frothingham, Rise of the 
Republic, 86. 

* Mass. Hist. Collections, xxxi, 
102, containing journal of Benjamin 



Wadsworth, who accompanied the 
Mass. delegates. 

* For the text of Penn's plan, see 
Appendix 11. 

* Cf. "A Representation of the 
Lords of Trade to the King," in 
N. Y. Col. Doc, V, 591. 



v.] AMERICAN CONFEDERATIONS FROM 1643 TO 1777 121 

to a convocation of deputies from Massachusetts a plan of 
union something like the early New England Confederacy, and 
to that the Six Nations sent their sachems. In 1751 Clinton 
invited representatives of all the colonies from New Hampshire 
to South Carolina to meet the Six Nations for composing a 
league; ^ and in 1752 Governor Dinwiddie advocated distinct 
northern and southern confederations. ^ 

Such was the nature of the loose confederacies — each rest- Albany meet- 
ing on the ancient quota idea or requisition plan — that pre- ^°^ ^'^^^' 
ceded the notable meeting held at Albany, June 19, 1754, 
under an order from the home government bidding the col- 
onies to defend their frontiers, as the French and Indian War 
was about to begin. Twenty-five delegates from the seven 
northern colonies met at Albany, and among them was Benja- 
min Franklin, who is said to have there submitted a plan for 
organizing a system of colonial defense which was adopted and 
reported ; it provided for a president-general of all the colonies, 
to be appointed by the Crown, and a grand council to be chosen 
by the representatives of the people of the several colonies. The 
real purpose of the meeting is revealed by Madison, who says Madison's 

that "as early as the year 1754, indications having been given ftatementof 

its purpose. 
of a design in the British Government to levy contributions on 

the colonies without their consent, a meeting of colonial depu- 
ties took place at Albany, which attempted to introduce a com- 
promising substitute, that might at once satisfy the British 
requisitions, and save their own rights from violation. The 
attempt had no other effect than, by bringing these rights into 
a more conspicuous view, to invigorate the attachment to 
them, on the one side; and to nourish the haughty and en- 
croaching spirit on the other." ^ Franklin himself has told us Franklin's 
that "by this plan the general government was to be admin- 
istered by a president-general, appointed and supported by the 
Crown, and a grand council, to be chosen by the represent- 
atives of the people of the several colonies, met in their re- 
spective assemblies, . . . but another scheme was formed, 
supposed to answer the same purpose better, whereby the 

* The journal of the commission- movements in the opening chapter 

era is in the Mass. Archives, xxxviii, of vol. viii of his final revision; Nar, 

160. and Crit. Hist., v, 611 sq. 

2 See Bancroft's summary of such * Madison Papers, ii, 686-687. 



statement. 



Daniel Coze. 



122 THE AMERICAN CONSTITUTION [Ch. 

governors of the provinces, with some members of their re- 
spective councils, were to meet and order the raising of troops, 
building of forts, etc., and to draw on the Treasury of Great 
Britain for the expense, which was afterwards to be refunded by an 
Act of Parliament laying a tax on America. . . . Therefore the 
commissioners came to another previous resolution, viz. : that 
it was necessary the union should be established by Act of 
Parliament." ^ In the light of the foregoing it will be easy to 
understand the part actually played by Franklin as it has been 
well described by McMaster: "The idea of union had long been 
in his mind, and to the conference which gathered at Albany he 
brought a carefully drawn plan. The credit of that plan is 
commonly given him. But it ought in justice never to be men- 
Plan of tioned without a reference to the name of Daniel Coxe. . . . 
So early as 1722 Coxe foresaw the French aggression, called 
on the colonies to unite to prevent it, and drew up the heads of 
a scheme for united action. Coxe proposed a governor-general 
appointed by the Crown and a congress of delegates chosen by 
the assemblies of the colonies. Franklin proposed the very 
same thing. Coxe would have each colony send two delegates 
annually elected. Franklin would have from two to seven dele- 
gates triannually elected. By each the grand council, with con- 
sent of the governor-general, was to determine the quotas of 
men, money, and provisions the colonies should contribute to the 
common defense. The difference between them is a difference in 
detail, not in plan. The detail belongs to Franklin. The plan 
must be ascribed to Coxe." ^ 

It thus appears (i) that Franklin was not the real author of 
the plan of union of 1754, if plan it may be called; (2) that the 
scheme of taxation contemplated in that plan was simply the 
ancient requisition system based on quotas, afterwards embod- 
ied by Franklin in the Articles of Confederation. McMaster so 
declares in express terms when he says: "By each the grand 
council, with the consent of the governor-general, was to deter- 
mine the quotas of men, money, and provisions the colonies 
should contribute to the common defense" — precisely the 
requisition system of the Confederation. 

* Cf. The Life and Writings of ' McMaster, Benjamin Franklin, 
Benjamin Franklin (Smyth), Hi, 162-163. See Appendix in. 
197, 229, 242, 243, 365; vi, 356, 416. 



V.l AMERICAN CONFEDERATIONS FROM 1643 TO 1777 123 

Nothing new was proposed at Albany by Franklin or Coxe; Nothing new 
and nothing came of what was proposed except a more deter- p^^pos^- 
mined purpose upon the part of the people to reject what they 
considered an unjustifiable assault by the British Crown upon 
colonial rights. To repeat the words of Madison: "The at- 
tempt had no other effect than, by bringing these rights into a 
more conspicuous view, to invigorate the attachment to them 
on the one side; and to nourish the haughty and encroaching 
spirit on the other." As the scheme proposed at Albany gave 
so much power to the Crown, it was rejected by the people in 
every colony. 

In estimating the effects of the growth of population on feder- Effects of the 
ation, it must be remembered thatduring the century and a half ^^^^^jfo^ qq 
that intervened between the founding of the first settlements federation. 
and the close of the French and Indian War the population of 
the thirteen colonies had swelled to full a million and a half ^ — 
nearly one fourth of that of the mother country. That rapid 
increase forced upon the early settlements the necessity of con- 
tinually widening their boundaries. In that way disputes arose 
not only among the colonists themselves, but with settlers of 
other nationalities grouped about them whose boundaries were 
defined in grants from their own sovereigns. The French, who 
early in the seventeenth century had possessed themselves of 
Canada and the St. Lawrence, possessed themselves early in the 
eighteenth of the Mississippi, founding in 1 718 the city of New 
Orleans. Between the mouths of the two mighty rivers were 
placed at points of the greatest strategic value a line of forts, 
which were designed to protect from English intrusion that 
vast domain called New France, which stretched on the west New France, 
of the Alleghanies from New Orleans to Quebec. By such 
means as these the French hoped to retain for themselves the 
valleys of the Mississippi and Ohio, and to confine the English 
colonies within that comparatively narrow strip of country 
lying between the Appalachian range and the Atlantic Ocean. 
But when the time for expansion came, when the necessities of The struggle 
the swelling English population impelled them to pass the tops expansion, 
of the Alleghanies in order to possess themselves of the great 
valleys beyond, upon which France had first laid hold, the fact 

^ " 1,200,000 whites and a quarter of a million of negroes." Green, Kist, 
of the Eng. People, iv, 167. 



124 



THE AMERICAN CONSTITUTION 



[Ch. 



Effects of 
French and 
Indian War 
upon the 
cause of union. 



Stamp Act 
Congress, 
Oct. 7, 1765. 



was revealed that the young giant of the Atlantic had only 
been bound by the thongs of Lilliput.^ When the English 
colonial system came in collision with the French colonial 
system, when the new self-governing soldiery which had been 
reared in the southern countries and in the New England town- 
ships went out together under the lead of the mother country to 
do battle with a colonial power that had never been trained in 
self-reliance, it " was like a Titan overthrowing a cripple." * 
France's dream of empire in the west was broken, she was forced 
to give up her priceless possessions and to retire from North 
America. The results of the French and Indian War were mo- 
mentous in their effects upon the cause of union. By the over- 
throw of the one enemy that they feared, the only real cause 
for the dependence of the colonies upon the mother country 
was removed at a blow; by their joint endeavors was won the 
vast domain beyond the Alleghanies that was destined to 
become a national possession ; in the thick of the fight the new 
nationality, heretofore unconscious of its real character, finally 
awoke to a sense of its oneness. The struggle for expansion 
thus became the training-school in which the colonists were for 
the first time made to realize their capacity for concert of 
action upon which they had mainly to rely in the greater fight 
that was soon to come. Within two years after the making of 
the Peace of Paris, by which the French and Indian War was 
formally terminated, the colonies were called upon to act in 
concert in resisting the Stamp Act, which in February, 1765, 
had passed the Imperial Parliament "with less opposition than 
a turnpike bill." ' 

When Massachusetts spoke the word for the first American 
Congress, the nine of the thirteen colonies that met in New 
York in response to the summons took the first step on the way 
to union. The Massachusetts House of Representatives, in a 
circular letter of June 8, proposed to the other colonies the 
appointment of committees to meet at New York, in October, 



* See Nar. and Grit. Hist., v, ch. 
viii, entitled "The Struggle for the 
great valleys of North America." 

2 Fiske, Am. Political Ideas, 56. 
But see the criticism of that state- 
ment in Nar. and Grit. Hist., v, 533, 
note I. 



* Green, Hist, of the Eng. People, 
iv, 230. For the history of the 
Peace of Paris, February, 1763, see 
Parkman, Montcalm and Wolfe, ii, 
383 ^2- 



v.] AMERICAN CONFEDERATIONS FROM 1643 TO 1777 I25 

" to consult together on the present circumstances of the colon- 
ies, and the difficulties to which they are and must be reduced 
by the operation of the Acts of Parliament, for levying duties 
and taxes on the colonies; and to consider of a general and 
united, dutiful, loyal and humble representation of their con- 
dition to His Majesty and to the Parliament and to implore 
relief." Delegates, variously appointed from Massachusetts, 
Rhode Island, Connecticut, New York, New Jersey, Pennsyl- 
vania, Delaware, Maryland, and South CaroUna met in Octo- 
ber, with Timothy Ruggles of Massachusetts as chairman, and 
on the 19th a "declaration of the rights and grievances of the 
colonists in America,"^ originally drafted by John Dickinson, a 
delegate from Pennsylvania, was agreed to. On the 22d a peti- 
tion to the King drawn by the same hand, and a memorial and 
petition to the House of Lords, were approved, followed on the 
23d by a petition to the Commons. The petition to the Com- 
mons was presented in that body, January 27, 1766, and, after 
some debate, was passed over without action. 

On March 18, 1766, the Stamp Act was repealed by the 
Whig Ministry of Rockingham which succeeded that of Gren- 
ville in July, 1765, it being specially declared at the time, in a 
declaratory act,^ that the Parliament of Great Britain "had 
both, and of right ought to have, full power and authority to 
make laws and statutes of sufficient force and validity to bind 
the colonies and people of America, subjects of the Crown of 
Great Britain, in all cases whatsoever." V" 

Nine years later, when Massachusetts, at the suggestion of First - 
Virginia, again gave the word, the First Continental Congress Continental 
assembled in Philadelphia in September, 1774, '^^ which all the Sept., 1774. 
colonies were represented except Georgia. In this the first 
American assembly which was really national, and in which 
Washington sat in his colonel's uniform, the new-born spirit of 
union was embodied in a resolution that made the cause of the 
people of Massachusetts the cause of all by the declaration that 
if force shall be used "all America ought to support them in 
their opposition." In the preceding March, Lord North's 
Government, after communicating to the House the dispatches Drastic 
from America, had carried drastic measures, by one of which f ^^/^^jg^ 
the port of Boston was closed, and its trade transferred, after 

* See Appendix iv. * See Appendix v. 



126 



THE AMERICAN CONSTITUTION 



[Ch. 



Action of 

Virginia 

burgesses. 



Leaders of 
Congress. 



the 



June I, to the older port of Salem. By a second, the charter of 
the colony was suspended. By a third, provision was made for 
the quartering of troops within the province ; while by a fourth 
was legalized the transfer to England of trials growing out of 
attempts to quell riots in the colony. After the text of the new 
statute was known in Boston on June 2, the governor, Thomas 
Hutchinson, who was born and bred in the colony, went to 
England to explain to the Ministers that "the prevalence of a 
spirit of opposition to the Government in the plantation is the 
natural consequence of the great growth of the colonies so 
remote from the parent state, and not the effect of oppression 
in the King or his servants, as the promoters of this spirit 
would have the world believe." ^ In May, a month before the 
text of the obnoxious acts reached Boston, the burgesses of 
Virginia ordered that June i, the day upon which the Boston 
Port Bill was to take effect, be set apart as a day of fasting and 
prayer; and, after Dunmore had promptly dissolved them, as 
a counterblast they assembled again in the Raleigh Tavern 
and issued a call to the other colonies for a general congress. 
Rhode Island, New York, and Massachusetts had also asked 
for a general "Congress of Committees," — the assembly of 
the latter locking its doors against the governor's messenger, 
sent to dissolve it, until it had completed its choice of a com- 
mittee "to meet the committees appointed by the several colo- 
nies to consult together upon the present state of the colonies." 
Those who came together at Philadelphia on September 5, 
as a part of an almost spontaneous movement, were the most 
eminent men among the colonists, with an ability and intel- 
ligence that was remarkable. The most notable group, that 
from Virginia, is arranged in the following order : Peyton Ran- 
dolph (chosen president), Richard Henry Lee, George Wash- 
ington, Patrick Henry, Richard Bland, Benjamin Harrison, 
and Edmund Pendleton.^ From South Carolina came two 
members of the Stamp Act Congress of 1765, John Rutledge 
and Christopher Gadsden; from Massachusetts, Thomas Gush- 
ing, Samuel Adams, and John Adams; from New York, John 

* The same idea was expressed by will do what Carthage did." CEuvres 

Turgot, who said that "colonies are de M. Turgot (Paris, 1808-11), ii, 19, 

like fruit, which cling to the tree 66. 

only till they ripen. As soon as * Journals of the Continental Con- 

America can take care of itself, it gress, 1774, ii 44 (Ford ed.). 



v.] AMERICAN CONFEDERATIONS FROM 1643 TO 1777 I27 

Jay, James Duane, and Philip Livingston ; from Pennsylvania, 
Joseph Galloway, Thomas Mifflin, and Edward Biddle; from 
New Hampshire, John Sullivan; from Connecticut, Roger 
Sherman and Silas Deane; from Rhode Island, Stephen Hop- 
kins; from Maryland, Samuel Chase and Robert Goldsbor- 
ough; from New Jersey, William Livingston and James 
Kinsey; from North Carolina, William Hooper and Joseph 
Hewes, and Richard Caswell. While Galloway, the speaker 
and leader of the Pennsylvania assembly, wished the state 
house to be used, "the members met at the City (or Smith's) 
Tavern, at ten o'clock, and walked to the Carpenters' Hall, 
where they took a view of the room, and of the chamber where 
is an excellent library. . . . The general cry was that this 
was a good room, and the question was put, whether we were 
satisfied with this room? and it passed in the affirmative." ^ 

Four days after the meeting of the Congress at Philadelphia, Declaration by 
delegates from Boston and the other towns in Suffolk County ot^g^t^wii 
had declared in convention that the acts complained of, being Sept. 9. 
unconstitutional, ought not to be obeyed ; that the new judges 
appointed under the act of suspension ought not to be per- 
mitted to act; that the collectors of taxes should be advised to 
retain the money collected, rather than put it into General 
Gage's treasury ; and that in view of the impending conflict, the 
people ought to be urged to prepare for war, — not with a view 
to provoking hostilities, but in order, if necessary, to resist 
aggression. They resolved to accept the action at Philadelphia 
as law for the common guidance of the colonies; and they 
declared also for a provincial congress to take the place of the 
legislative council of their suspended charter. 

At the outset of the seven weeks' meeting of the Congress, No talk of 
which disclosed a nice balance of parties, there was no talk of revolution 

at outset. 

actual revolution in the air. The "brace of Adamses," who 
were said to be for independence, and who were suspected of 
a purpose to assume the leadership, failed to assert themselves 
in that way. Under such conditions the assembly came near 
accepting the guidance of the conservative Galloway, a genu- 
ine loyalist, and yet a patriot and advocate of the legal rights 
of the colonies, who proposed a memorial to the Crown sug- pian°oTcon- 
gesting a confederation of the colonies, with a legislature of federation. 
^ John Adams's Works, ii, 365. 



128 



iTHE AMERICAN CONSTITUTION 



[Ch. 



Declaration of 
Rights and 
Liberties, 
Oct. 14. 



"The Associa- 
tion," Oct. 20. 



their own,* after the plan drafted by Coxe and Franklin, in the 
meeting at Albany in 1754. That proposal failed by a very 
narrow majority when put to the vote. Even Rutledge, de- 
scribed by Patrick Henry as the most eloquent man in the 
assembly, declared it to be an "almost perfect plan." From 
that idle dream the Congress turned to closer organization of 
the colonies for concert of action ; and to the drafting of a series 
of state papers defining the principles upon which such action 
was to be based. In those papers was embodied a hearty 
response to the appeal of Massachusetts. It was the common 
sentiment of all that the whole continent should support her 
resistance to the unconstitutional changes in her government, 
and that any one who should accept office under the new order 
of things ought to be considered a public enemy. On October 
14, the Congress agreed to a Declaration of Rights and Liber- 
ties, asserting "that the inhabitants of the English colonies in 
North America, by the immutable laws of nature, the prin- 
ciples of the English Constitution, and the several charters 
or compacts, have the following Rights." The first draft was 
made by John Sullivan, and among the Adams papers Is a 
paper in a script "somewhat resembling that of Major Sulli- 
van," which Is believed to be the report first submitted.^ The 
fourth article, which was prepared by John Adams, caused 
much debate both In committee and in Congress, because 
Galloway and his followers thought it aimed at independence. 
An effort to amend It failed ; it was left unaltered in its essen- 
tials; and in its final form is the work of Adams.^ On the 20th 
was read and signed by fifty- three members "The Associa- 
tion," * in which it was declared: "To obtain redress of these 
grievances, which threaten destruction to the lives, liberty, and 
property of His Majesty's subjects in North America, we are 
of opinion that a non-importation, non-consumption, and non- 
exportation agreement, faithfully adhered to, will prove the 
most speedy, effectual, and peaceable measure." On the 21st, 



^ For Galloway's plan, see Jour- 
nals of the Continental Congress, 1774, 
i, 43-48 (Ford ed.). See Galloway, 
Historical and Political Reflections 
on the Rise and Progress of the Ameri- 
can Rebellion (1780), 70. 



* It is printed in Adams's Works, 

ii. 535- 

* See his letter to Edward Biddle, 
December 12,1774; Journals of Con- 
tinental Congress, 1774, i, 63, and 
notes (Ford ed.). 

* Ibid. 75 sg_. 



v.] AMERICAN CONFEDERATIONS FROM 1643 TO 1777 I29 

after the approval of the address to the people of Great Brit- Address to 
ain drafted by John Jay, was resumed the consideration of the Pf°P^^ °^. . 

, . Great Bntain, 

memorial to the mhabitants of the British colomes, drafted by Oct. 21. 
Richard Henry Lee, and the same being gone through and 
debated by paragraphs and amended, was approved. On the 
22d was read the address to be presented to the colonies in 
Canada ; and on the 26th was signed the petition to the King, 
concluding with an expression of the hope "that Your Majesty Petition to 
may enjoy every felicity through a long and glorious reign ^^' ^^^- ^^• 
over loyal and happy subjects, and that your descendants may 
inherit your prosperity and dominions 'till time shall be no 
more." After thus entreating their sovereign, in terms of 
affectionate and respectful eloquence, to restore to them their 
violated rights, their rights as English freemen, the delegates 
provided for another Congress to meet in the following May, in Another Con- 
the event that their grievances should not in the mean time be P^*^ follow- 
redressed. When the proceedings of the Congress were pub- 
lished in England, Lord Chatham declared that "for solidity 
of reason, for sagacity and wisdom of conclusion, under a 
complication of difficult circumstances, no nation or body of 
men can stand in preference to the general congress at Phil- 
adelphia. The histories of Greece and Rome give us nothing 
equal to it, and all attempts to impose servitude upon such a 
mighty continental nation must be in vain." 

In the Second Continental Congress, which met at Phila- Second 
delphia in the chamber of the state house since known as Inde- Continental 

C^onfirrcss 

pendence Hall, May 10, 1775, all the colonies appeared; and. May, 1775. 
in the summer of 1776, all took part in the two great acts ^ that 
gave life and character to the new nationality. From the meet- 
ing of that Congress down to March i, 1781, when Maryland 
signed the Articles of Confederation and completed the first 
Constitution, it was the only cohesive force that held the states 
together and directed their federal affairs. During that inter- 
val of nearly six years the Congress was the Federal Govern- 
ment — such a government as it was — de jure and de facto ; 
and the general scope of its powers cannot be more clearly 

* On the 7th of June Richard free and independent states. . . . 

Henry Lee moved a resolution, And that a plan of confederation be 

which was adopted by Congress on prepared and transmitted to the re- 

the llth, "That these United Col- spective colonies for their considera- 

onies are, and of right ought to be, tion and approbation." 



130 



THE AMERICAN CONSTITUTION 



[Ch. 



Articles of Con- 
federation 
drafted by 
Franklin, 
July, I77S. 



Second draft 
by Dickinson, 
July, 1776. 



Debate begun 
July 22; 



expressed than in the language of Justice Chase, who said that 
"the powers of Congress originated from necessity and arose 
out of and were only limited by events, or, in other words, they 
were revolutionary in their very nature. Their extent de- 
pended on the exigencies and necessities of public affairs." ^ 

After a long and painful travail the Second Continental Con- 
gress gave birth to the first Federal Constitution of the United 
States. "It appears that as early as the twenty-first of July, 
1775, a plan, entitled 'Articles of Confederation and perpetual 
Union of the Colonies,' had been sketched by Dr. Franklin, the 
plan being on that day submitted by him to Congress; and 
though not copied into their Journals, remaining on their files 
in his handwriting. But notwithstanding the term ' perpetual ' 
observed in the title, the Articles provided expressly for the 
event of a return of the colonies to a connection with Great 
Britain." ^ This sketch became the basis for the plan reported 
by the committee on the 12th of July, now also remaining on the 
files of Congress in the handwriting of Mr. Dickinson. The 
plan, though dated after the Declaration of Independence, was 
probably drawn up before that event; since the name of 
colonies, not states, is used throughout the draft. The plan 
reported was debated and amended from time to time, till the 
17th of November, 1777, when it was agreed to by Congress, 
and proposed to the legislatures of the states, with an ex- 
planatory and recommendatory letter. The ratifications of 
these, by their delegates in Congress, duly authorized, took 
place at successive dates ; but were not completed till the first 
of March, 1781, when Maryland, who had made it a prere- 
quisite that the vacant lands acquired from the British Crown 
should be a common fund, yielded to the persuasion that a final 
and formal establishment of the " Federal Union and Govern- 
ment would make a favorable impression, not only on other 
foreign nations, but on Great Britain herself." ' 

On July 22 the House resolved itself into a committee of the 
whole to take into consideration the articles of a confedera- 
tion reported by the committee on July 12; and on the 30th 



* See Ware v. Hylton, 3 Dallas, 
232. Von Hoist incorrectly attrib- 
utes that statement to Jay, C. J. 

* See Franklin, Works (Sparks 



ed.), V, 91; Secret Journals of Con- 
gress (Domestic Affairs), 21st July, 
1775, i. 283. 
» Madison Papers, ii, 688-689. 



v.] AMERICAN CONFEDERATIONS FROM 1643 TO 1777 13I 

and 31st of that month, and the first of the ensuing, those arti- 
cles were debated which determined the proportion or quota of 
money each state should furnish to the common treasury, and 
the manner of voting in Congress. Jefferson has preserved for 
us only a fragment of the debates that took place in 1776 on the fragment 
Declaration of Independence and on two of the Articles of byjeffereon. 
Confederation (Articles xi and xvii) named above. "These 
Debates were given to Mr. Madison, in Mr. Jefferson's own 
handwriting as now on file among Mr. Madison's papers. They 
are prefixed as forming a part of the only materials known to 
exist in the form of Debates within the Revolutionary Con- 
gress." ^ From this precious fragment thus preserved a few 
extracts will be taken. The original draft of Article xi provided Original draft 
-that "all charges of war and all other expenses that shall be ° cexi. 
incurred for the common defense, or general welfare, and al- 
lowed by the United States assembled, shall be defrayed out 
of a common treasury, which shall be supplied by the sev- 
eral colonies in proportion to the number of inhabitants of 
every age, sex, and quality, except Indians not paying taxes, in 
each colony, a true account of which, distinguishing the white 
inhabitants, shall be triennially taken and transmitted to the 
Assembly of the United States." After Mr. Chase of Mary- Comments 
land had moved that the quotas should be paid, not by the ^ ^' 
number of inhabitants of every condition, but by that of the 
"white inhabitants," he said "he considered the number of 
inhabitants as a tolerably good criterion of property, and that 
this might always be obtained. He therefore thought it the 
best mode we could adopt, with one exception only. He ob- 
served that negroes are property, and as such cannot be dis- 
tinguished from the lands or personalties held in those states 
where there are a few slaves." Mr. John Adams then replied by John 
"that the numbers of people were taken by this article as an 
index of the wealth of a state, and not as subjects of taxation. 
That as to this matter it was of no consequence by what name 
you called your people, whether by that of freemen or slaves. 
That in some countries the laboring poor were called freemen, 
in others they were called slaves : but that the difference as 
to the state was imaginary only. . . . That the condition of 
the laboring poor in most countries — that of the fishermen, 
^ Madison Papers, ii, 9-39. 



Adams; 



132 



THE AMERICAN CONSTITUTION 



[Ch. 



by Wither- 
spoon. 



particularly of the Northern States — is as abject as that of 
by Wilson; slaves." Mr. Wilson said, " that if this amendment should take 
place, the Southern colonies would have all the benefit of slaves, 
whilst the Northern ones would bear the burden. That slaves 
increase the profits of a state, which the Southern States mean 
to take to themselves; that they also increase the burden of 
defense, which would of course fall so much the heavier on the 
Northern; that slaves occupy the places of freemen and eat 
their food. Dismiss your slaves, and freemen will take their 
places. It is our duty to lay every discouragement on the 
importation of slaves ; but this amendment would give the jus 
trium liberorum to him who would import slaves." Doctor 
Witherspoon said "that the value of lands and houses was the 
best estimate of the wealth of a nation, and that it was prac- 
ticable to obtain such a valuation. ... It has been objected 
that negroes eat the food of freemen, and therefore should be 
taxed; horses also eat the food of freemen, therefore they 
should be taxed." 

After the amendment had been defeated by a vote of seven 
Northern against five Southern States, with Georgia divided, 
the debate was shifted, with forty-one members present, to 
Article xvii, which provided that "in determining questions, 
each colony shall have one vote." Then it was that "Mr. 
Chase observed, that this article was the most likely to divide 
us, of any one proposed in the draught then under consideration. 
That the larger colonies had threatened they would not con- 
federate at all, if their weight in Congress should not be equal 
to the numbers of people they added to the confederacy; 
while the smaller ones declared against a union, if they did not 
retain an equal vote for the protection of their rights. That it 
was of the utmost consequence to bring the parties together, as, 
should we sever from each other, either no foreign power will 
ally with us at all, or the different states will form different 
alliances, and thus increase the horrors of those scenes of civil 
war and bloodshed, which, in such a state of separation and 
independence, would render us a miserable people. . . . He 
therefore proposed, that in votes relating to money the voice 
of each colony should be proportioned to the number of its 
by Franklin; inhabitants." Dr. Franklin "thought, that the votes should 
be so proportioned in all cases. He took notice that the Dela- 



Article xvn. 

Comments 
by Chase; 



v.] AMERICAN CONFEDERATIONS FROM 1643 TO 1777 1 33 

ware counties had bound up their delegates to disagree to this 
article. He thought it a very extraordinary language to be held 
by any state, that they would not confederate with us unless 
we would let them dispose of our money. Certainly, if we vote 
equally we ought to pay equally: but the smaller states will 
hardly purchase the privilege at this price. . . . He repro- 
bated the original agreement of Congress to vote by colonies, 
and therefore was for their voting in all cases according to the 
number of taxables." Doctor Witherspoon "opposed every byWither- 
alteration of the article. All men admit that a confederacy is ^p°°°' 
necessary. Should the idea get abroad that there is likely to 
be no union among us, it will damp the minds of the people, 
diminish the glory of the struggle, and lessen its importance; 
because it will open to our view future prospects of war and 
dissension among ourselves. If an equal vote be refused, the 
smaller states will become vassals to the larger ; and all expe- 
rience has shown that the vassals and subjects of free states 
are the most enslaved." He added "that the Belgic Confed- 
eracy voted by provinces." Doctor Rush "took notice, that by Rush; 
the decay of the liberties of the Dutch Republic proceeded 
from three causes: ist. The perfect unanimity requisite on all 
occasions. 2d. Their obligation to consult their constituents. 
3d. Their voting by provinces. This last destroyed the equal- 
ity of representation ; and the liberties of Great Britain also are 
sinking from the same defect." Mr. Hopkins observed "that by Hopkins, 
history affords no instance of such a thing as equal representa- 
tion. The Germanic body votes by states. The Helvetic body 
does the same ; and so does the Belgic Confederacy. That too 
little is known of the ancient confederations to say what was their 
practice." Such are the seed-points of light that glisten 
through the precious fragment that preserves for us "the only 
materials known to exist in the form of Debates within the 
Revolutionary Congress." As first words upon mighty ques- 
tions they possess an interest and a value all their own. 

Few things in our constitutional history are more moment- Maryland's 
ous than the determined refusal of Maryland to ratify the '^^^^^^^ ""p^" 
Articles until her just demands as to the western territory cessions to 
should first be complied with. At the outset she was supported United States. 
by New Jersey and Delaware, and their joint refusal to enter 
into the confederacy grew out of the controversy as to the ulti- 



134 



THE AMERICAN CONSTITUTION 



[Ch. 



"Instruc- 
tions" to her 



Virginia, 
New York, 
Massachusetts, 
and Con- 
necticut 
yield. 



mate ownership of the great western territory of which France 
had been dispossessed. After the Revolution had extinguished 
the rights of the English Crown in that vast domain, Virginia, 
New York, Connecticut, and Massachusetts undertook to 
claim it for themselves under conflicting and irreconcilable 
titles. The three resisting states, whose western boundaries 
were irrevocably fixed, could never hope to share in this great 
heritage unless its ownership should be vested in the corporate 
person of the new nationality. To prevent such a contingency 
the claiming states had procured an amendment of the Articles 
to the effect that no state should be deprived of territory for 
the benefit of the United States.^ Delaware and New Jersey 
soon withdrew from the controversy, leaving the fight for 
national dominion over this priceless possession to Maryland 
alone. In her " Instructions" to her delegates read in Congress, 
May 21, 1779, her position was clearly and distinctly defined. 
She claimed "that a country unsettled at the commencement 
of this war, claimed by the British Crown, and ceded to it by 
the Treaty of Paris, if wrested from that common enemy by the 
blood and treasure of the thirteen states, should be considered 
as common property, subject to be parceled out by Congress 
into free, convenient, and independent governments, in such 
manner and at such times as the wisdom of that assembly shall 
hereafter direct." ^ Fortunately for the future of the country, 
from this high ground she never withdrew. In January, 1781, 
Virginia agreed conditionally to yield her claims; ^ on March i, 
1 78 1, New York executed a transfer of her rights to the United 
States ; and on that day Maryland completed the new Consti- 
tution by giving it her adhesion.^ Exactly three years there- 
after Virginia conveyed without conditions, and in due time 
Massachusetts and Connecticut did substantially the same 
thing. In that way the new nationality became the sovereign 
possessor of "the whole northwestern territory — the area of 
the great states of Michigan, Wisconsin, Illinois, Indiana, and 
Ohio (excepting the Connecticut Reserve," ^ which, under the 
Articles of Confederation, it had no express right either to hold 



> See Journals of Congress, u, ^64. * Journals of Congress, Hi, 581, 

* Ibid, iii, 281. 582, 591. 

• Journal of Va. House of DelC' • The Critical, Period, 194. 
gates, 79. 



V.l AMERICAN CONFEDERATIONS FROM 1643 TO 1777 135 

or govern.)^ Not until Maryland had been assured that this Northwest 
great prize should belong to the new confederacy, not until territory 

vested, in new 

its right to possess this vast domain as folkland had been nationaUty. 
clearly admitted, did she agree to become a member of the 
league whose Constitution soon proved itself to be more weak, 
more worthless, more impotent than that of any of the older 
Teutonic leagues after which it was patterned. 

In 1754 we find Dr. Franklin at Albany proposing a plan of sterility of 
federation, heretofore explained, of which Daniel Coxe was designers of 

. first Constitu- 

probably the chief designer. Twenty-one years later we find tion. 
him at Philadelphia making the first draft of the Articles of 
Confederation, which survives in his handwriting. As that per- 
formance simply embodied the then prevailing type of confed- 
eration resting on the requisition system, the documentary 
evidence is conclusive that, down to that time, the most 
original and resourceful mind of the epoch had conceived of 
nothing new in the way of a federal government. And, so far as 
Congress and the state legislatures were concerned, certainly 
no attempt at change or reform was made down to the comple- 
tion of the first Constitution by the acceptance of the Articles 
by Maryland, March i, 1781. That, down to that date, Amer- 
ican statesmen had exhibited no fertility of resource whatever 
in the making of federal constitutions is manifest from the text 
of their first performance reproduced as Appendix x. 
The one particular in which our first Federal Constitution rose The principle 

above the older Teutonic leagues after which it was patterned °^ inter-dti- 

... zenship. 

was embodied in the new principle of interstate citizenship, 

which it originated. "The principle of inter-citizenship infused 
itself neither into the constitution of the old German Empire, 
nor of Switzerland, nor of Holland." ^ Section one of Article 
four of the Articles of Confederation provided that "the bet- 
ter to secure and perpetuate mutual friendship and intercourse 
among the people of the different states of this Union, the free 
inhabitants of each of these states, paupers, vagabonds, and 
fugitives from justice excepted, shall be entitled to all privi- 
leges and immunities of free citizens of the several states." The 

* As to "the exercise of national Dr. Adams's paper entitled "Mary- 
sovereignty in the sense of eminent land's Influence upon Land Cessions 
domain, a power totally foreign to of the United States." /. U. Studies, 
the Articles of Confederation " under 3d series, 
the Ordinances of 1784 and 1787, see * Bancroft, Hist, of Const., i, 118. 



136 



THE AMERICAN CONSTITUTION 



[Ch. 



First Constitu- 
tion devoid of 
taxing power. 



Purse and 
sword retained 
by the states. 



Congress pos- 
sesssed hardly 
more than ad- 
visory power. 



substance of that provision was reproduced in Section two of 
Article four of the existing Constitution, which provides that 
"the citizens of each state shall be entitled to all privileges 
and immunities of citizens in the several states." With that 
exception the first Constitution simply created, on the old 
plan, "a firm league of friendship," in which no taxing power 
whatever was vested. "All charges of war, and all other 
expenses that shall be incurred for the common defense or 
general welfare, and allowed by the United States in Congress 
assembled, shall be defrayed out of a common treasury, which 
shall be supplied by the several states, in proportion to the 
value of the land within each state. . . . The taxes for paying 
that proportion shall be laid and levied by the authority and 
direction of the legislatures of the several states, within the 
time agreed upon by the United States in Congress assem- 
bled." 

Congress was authorized "to agree upon the number of 
land forces, and to make requisitions from each state for its 
quota, in proportion to the number of white inhabitants in 
such state, which requisition shall be binding; and thereupon 
the legislature of each state shall appoint the regimental of- 
ficers; raise the men, clothe, arm and equip them." Thus the 
entire control of the purse and the sword was retained by the 
state legislatures. There was no national executive or judi- 
ciary. Such federal powers as the Confederation did possess 
were vested and confused in a one-chamber assembly composed 
of delegates which the state legislatures could appoint and 
recall at pleasure. In that assembly each state had an equal 
vote; important measures required the votes of nine of the 
thirteen states and amendments the votes of all. Congress 
could borrow money, but it could make no provision for its 
repayment outside of the requisition system that depended 
alone on the power of the states ; it alone could declare war, but 
it had no power to compel the enlistment, arming, or support of 
an army ; it alone could decide disputes between the states, but 
it had no power to compel either disputant to respect or obey 
its decisions ; it alone could make treaties with foreign nations, 
but it had no power to prevent individual states from violating 
them. Congress had no power to prevent or punish offenses 
against its own laws, or even effectively to perform the duties 



v.] AMERICAN CONFEDERATIONS FROM 1643 TO 1777 137 

imposed upon it by the constitution of the league ; it had hardly 
more than advisory powers at best. Even commerce, foreign 
and domestic, was to be regulated entirely by the states ; and it 
was not long before state self-interest began to show itself in 
the regulation of duties on imports. The states were, however, 
forbidden to make treaties, peace, or war, to grant titles of 
nobility, to keep vessels of war or soldiers, or to buy imports 
that would conflict with treaties already proposed to France or 
Spain. The fatal defect in such a constitution was of course a 
lack of taxing power, a lack the quota system utterly failed to 
supply. 

In reviewing the history of the results of that system Ham- 
ilton said: "The universal delinquency of the states during Hamilton's 
the war shall be passed over with the bare mention of it. p[ctoe 
The public embarrassments were a plausible apology for that 
delinquency ; and it was hoped the peace would have produced 
greater punctuality. The experiment has disappointed that 
hope to a degree which confounds the least sanguine. A com- 
parative view of the compliances of the several states for the 
five last years will furnish a striking result. During that 
period, as appears by a statement on our files, New Hampshire, 
North Carolina, South Carolina, and Georgia have paid no- 
thing. I say ' nothing ' because the only actual payment is the 
trifling sum of about seven thousand dollars by New Hamp- 
shire. South Carolina indeed has credits, but these are merely 
by way of discount on the supplies furnished by her during the 
war, in consideration of her peculiar sufferings and exertions 
while the immediate theatre of it. Connecticut and Delaware 
have paid about one third of their requisitions ; Massachusetts, 
Rhode Island, and Maryland, about one half; Virginia about 
three fifths; Pennsylvania nearly the whole; and New York 
more than her quota. . . . Things are continually growing 
worse; the last year in particular produced less than $200,cxx), 
and that from only two or three states. Several of the states 
have been so long unaccustomed to pay, that they seem no 
longer concerned even about the appearance of compliance. 
Connecticut and New Jersey have almost formally declined 
paj^ng any longer. The ostensible motive is the non-concur- 
rence of the state in the import system. The real one must be 
conjectured from the fact. Pennsylvania, if I understand the 



138 THE AMERICAN CONSTITUTION [Ch. 

scope of some late resolutions, means to discount the interest 
she pays upon her assumption to her own citizens; in which 
case there will be little coming from her to the United States. 
This seems to be bringing matters to a crisis. The pecuniary 
support of the Federal Government has of late devolved almost 
entirely upon Pennsylvania and New York. If Pennsylvania 
refused to continue her aid, what will be the situation of New 
York: Are we willing to be the Atlas of the Union? or are we 
willing to see it perish?" ^ 

^ Speech delivered in New York 1787. See Hamilton's PTorJfej (Lodge 
legislature on the revenue system in ed.), ii, 192 sq. 



CHAPTER VI 

PELATiAH Webster's invention of February i6, 1783 

By Hamilton's masterful summary the fact is fixed with the First Federal 
precision of a mathematical demonstration that our first faned'from a 
Federal Constitution failed because it did not possess either the lack of taxing 
power to impose or to collect federal taxes as such. The entire p^^^"^- 
taxing power was vested in thirteen state legislatures, each of 
which could fail in its duty under the quota system, without the 
fear of being coerced or punished by the federal head. From 
the review heretofore made of preexisting federal governments, 
during the two thousand years and more that intervene 
between the founding of the Achaian League (b.c. 281), and 
the completion of the Articles of Confederation (March i, 
178 1), it appears that during that vast expanse of time no 
federal government had ever existed armed with the power to 
tax. In every one of them the entire taxing power was vested 
in the states or cities composing the league; in every one of 
them contributions were made through the requisition or quota 
system. No claim can be set up that any American states- No real re- 
man connected with the administration of government ever pro^sed'^nrior 
proposed prior to February 16, 1783, any departure from the 101783. 
one stereotyped plan of federal government the world had ever 
known. When Coxe and Franklin made their experiment in 
1754 they simply reproduced the ancient quota system; when in 
1775 Franklin was given a free hand to draft a new federal con- 
stitution as a whole he made no material change in his original 
performance ; during the six years in which the Franklin draft 
was in the process of amendment by Congress, that body made 
no attempt to depart from the old model. When in January, 
1783, the desperate struggle for federal revenue that followed 
the close of hostilities reached its climax, the one thought of 
those who directed the deliberations of Congress was to amend 
the old system by some financial expedient that depended 
entirely upon the unanimous consent of thirteen states bitterly 
opposed to any relinquishment of the taxing power. In sum- 



140 



THE AMERICAN CONSTITUTION 



[Ch. 



Mr. Bland's 
summing up, 
Jan. 27, 1783. 



140 years 
of sterility. 



Servile 
copying. 



Webster pro- 
posed to abol- 
ish ancient 
system as 
early as 1781. 



ming up the situation on January 27, Mr. Bland of Virginia 
said : "That the ideas of the states on the subject were so averse 
to a general revenue in the hands of Congress, that if such a 
revenue were proper it was unattainable ; that as the deficiency 
of the contributions from the states proceeded, not from their 
complaints of their inability, but of the inequality of the ap- 
portionments, it would be a wiser course to pursue the rule 
of the Confederation, to wit, to ground the requisition on an 
actual valuation of lands ; that Congress would then stand on 
firm ground, and a practicable mode." ^ At an earlier moment 
on that very day, Mr. Bland had notified Congress of the act 
of his state repealing the grant of the impost and of her inabil- 
ity to pay her quota beyond a certain amount.^ Just an hun- 
dred and forty years had elapsed since the English colon- 
ists in America embodied their first attempt to construct 
a federal system in the constitution of the United Colonies of 
New England modeled upon that of the United Provinces 
of the Netherlands of which the Plymouth men had a special 
knowledge and experience. President John Adams summed up 
the whole matter when he said in his inaugural address, hereto- 
fore quoted, that the United Provinces of the Netherlands and 
the Confederation of Swiss Cantons were "the only examples 
which remain with any detail and precision in history, and 
certainly the only ones which the people at large had ever 
considered." In 1643 American statesmen began by making 
a servile copy of those impotent systems, "kept together by 
the peculiarity of their topographical position"; and down to 
the beginning of the year 1783 no advance whatever had been 
made upon them. 

When the time was thus ripe for a revolution, an original 
thinker of the highest order, an experienced financier, and the 
most authoritative expounder of political economy of that 
epoch, grappled with the pending taxative and financial pro- 
blem and solved it in the only way in which it could have been 
solved. Foreseeing what was to come, Pelatiah Webster had 

^ Madison Papers, i, 288. The to value the land, and return the 

debate on revenue began on January valuations to Congress. Ibid. 249- 

8, "on the report for valuing the 301. 

land conformably to the rule laid * Resolution of 28th Dec, 1782, 

down in the Federal Articles." That in Journal of House of Delegates, 80, 

rule proposed to require the states 90. 



VI.l PELATIAH WEBSTER'S INVENTION 14I 

proposed in 178 1 the entire abolition of the ancient conception 
of a federal government resting on the quota system with 
which the world had been for so long a time cursed. No one 
ever comprehended more clearly than he did the utter hope- 
lessness of the attempt to amend a federal system that should 
be abolished as a whole. That statement can best be supported 
by his own words : — 

"Note I. Forming a plan of confederation or a system of His exposure 
general government of the United States engrossed the atten- ^^^^^ ^^^^J 
tion of Congress from the Declaration of Independence, July 4, first Constitu- 
1776, till the same was completed by Congress, July 9, 1778, *'°°- 
and recommended to the several States for ratification, which 
finally took place March i, 1 781, from which time the said con- 
federation was considered as the grand constitution of the gen- 
eral government, and the whole administration was conformed 
to it. 

"And as it had stood the test of discussion in Congress for 
two years before they completed and adopted it, and in all the 
States for three years more before it was finally ratified, one 
would have thought that it must have been a very finished 
and perfect plan of government. 

"But on trial of it in practice it was found to be extremely 
weak, defective, totally inefficient, and altogether inadequate 
to its great ends and purposes, for 

" I. It blended the legislative and executive powers together 
in one body. 

"2. This body, viz.: Congress, consisted of but one house, 
without any check upon their resolutions. 

"3. The powers of Congress in very few instances were defin- 
itive and final ; in the most important articles of government 
they could do no more than recommend to the several States, 
the consent of every one of which was necessary to give legal 
sanction to any act so recommended. 

"4. They could assess and levy no taxes. 

"5. They could institute and execute no punishments except 
in the military department. 

"6. They had no power of deciding or controlling the con- 
tentions and disputes of different States with each other. 

"7. They could not regulate the general trade; or, 

"8. Even make laws to secure either public treaties with 



142 



THE AMERICAN CONSTITUTION 



[Ch. 



"Absurd 
doctrine of 
rotation." 



"Ten times 
easier to form 
a new constitu- 
tion than to 
mend the old 
one." 



foreign States, or the persons of public ambassadors, or to 
punish violations or injuries done to either of them. 

"9. They could institute no general judiciary powers. 

" 10. They could regulate no public roads, canals, or inland 
navigation, etc., etc., etc. 

"And what caps all the rest was that (whilst under such an 
inefficient political constitution the only chance we had of any 
tolerable administration lay wholly in the prudence and wisdom 
of the men who happened to take the lead in our public coun- 
cils) it was fatally provided, by the absurd doctrine of rotation, 
that if any member of Congress by three years' experience and 
application had qualified himself to manage our public affairs 
with consistency and fitness, that he should be constitutionally 
and absolutely rendered incapable of serving any longer till by 
three years' discontinuance he had pretty well lost the cue or 
train of the public counsels and forgot the ideas and plans 
which made his service useful and important, and, in the mean- 
time, his place should be supplied by a fresh man, who had the 
whole matter to learn, and when he had learned it was to give 
place to another fresh man, and so on to the end of the chapter. 

"The sensible mind of the United States by long experience 
of the fatal mischief of anarchy, or (which is about the same 
thing) of this ridiculous, inefficient form of government, began 
to apprehend that there was something wrong in our policy 
which ought to be redressed and mended, but nobody under- 
took to delineate the necessary amendments. 

" I was then pretty much at leisure, and was fully of opinion 
(though the sentiment of that time would not very well bear) 
that it would be ten times easier to form a new constitution 
than to mend the old one.^ I therefore sat myself down to 
sketch out the leading principles of that political constitution 
which I thought necessary to the preservation and happiness 
of the United States of America, which are comprised in this 
Dissertation. 

" / hope the reader will please consider that these are the 



^ Nothing is more remarkable 
than the boldness with which he 
stated that view while other men 
clung to the idea of amending the 
Articles of Confederation. The so- 
called Virginia plan presented in 



May, 1787, begins with the declara- 
tion "that the Articles of Confedera- 
tion ought to be so corrected and 
enlarged as to accomplish the objects 
proposed by their institution." 



VI.l PELATIAH WEBSTER'S INVENTION I43 

original thoughts of a private individual, dictated by the natun 
of the subject only, long before the important theme became the 
great object of discussion in the most dignified and important 
assembly which ever sat or decided in America." 

The bold innovator has thus given us in a very striking form 
the reasons that impelled him to propose in 1781 the calling 
of a "Continental Convention," for the purpose of wiping out 
the first Federal Constitution as a whole, and substituting for 
it a new scheme resting on a wholly novel theory. 

On February 16, 1783, when Philadelphia was the storm- Plan of Feb. 
centre of the struggle so to amend the first Federal Constitution ^^-^^^ ^Mhe 
as to enable it to produce a more certain revenue, Pelatiah very doors of 
Webster published, at the very doors of Congress, his entirely ^°°^^^- 
new plan of a federal government which was to solve the pro- 
blem not only for this country but for all the world. Striking 
at the very heart of the difficulty, he said that the power to levy 
federal taxes must be taken away from the thirteen popular 
assemblies and vested directly in a sovereign federal assembly 
armed with the independent power to enforce its own man- 
dates, through its own machinery. To use his own words : — 

"I begin with my first and great principle, viz.: That the Webster's 
Constitution must vest powers in every department sufficient ^^^ '^^j^ 
to secure and make effectual the ends of it. The supreme { 
authority must have the power of making war and peace — 
of appointing armies and navies — of appointing officers both 
civil and military — of making contracts — of emitting, coin- 
ing, and borrowing money — of regulating trade — of making 
treaties with foreign powers — of establishing post-offices — / 
and in short of doing everything which the well-being of the 
Commonwealth may require, and which is not compatible to 
any particular State, all of which require money, and cannot 
possibly be made effectual without it. 

" They must therefore of necessity be vested with power of taxa- 
tion. I know this is a most important and weighty truth, a dread- 
ful engine of oppression, tyranny, and injury, when ill used; yet, 
from the necessity of the case it must be admitted. 

"For to give a supreme authority a power of making con- 
tracts, without any power of payment — of appointing officers 
civil and military, without money to pay them — a power to 
build ships, without any money to do it with — a power of 



144 



THE AMERICAN CONSTITUTION 



[Ch. 



"Supreme 
authority" 
must not de- 
pend on " thir« 
teen popular 
assemblies." 



Must levy 
duties on 
imports. 



emitting money, without any power to redeem it — or of bor- 
rowing money, without any power to make payment, etc., etc. 

— such solecisms in government are so nugatory and absurd 
that I really think to offer further argument on the subject would 
be to insult the understanding of my readers. 

" To make all these payments dependent on the votes of thirteen 
^popular assemblies, who will undertake to judge of the propriety of 
every contract and every occasion of money, and grant or withhold 
supplies, according to their opinion, whilst at the same time the 
operations of the whole may he stopped by the vote of a single one of 
them, is absurd; for this renders all supplies so precarious and 
the public credit so extremely uncertain, as must in its nature 
render all efforts in war, and all regular administration in 
peace, utterly impracticable, as well as most pointedly ridic- 
ulous. Is there a man to be found who would lend money, or 
render personal services, or make contracts on such precarious 
security? Of this we have a proof of fact, the strongest of all 
proofs, a fatal experience, the surest tho' severest of all 
demonstration, which renders all other proof or argument on 
this subject quite unnecessary. 

" The present broken state of our finances — public debts and 
bankruptcies — enormous and ridiculous depreciation of pub- 
lic securities — with the total annihilation of our public credit 

— prove beyond all contradiction the vanity of all recourse to 
the particular Assemblies of the States. The recent instance 
of the duty of five per cent on imported goods, struck dead, 
and the bankruptcies which ensued on the single vote of Rhode 
Island, affords another proof of what it is certain may be done 
again in like circumstances. 

*' I have another reason why a power of taxation or of raising 
money, ought to be vested in the supreme authority of our common- 
wealth, viz.: the monies necessary for the public ought to be 
raised by a duty imposed on imported goods, not a bare five 
per cent or any other per cent on all imported goods indis- 
criminately, but a duty much heavier on all articles of luxury 
or mere ornament, and which are consumed principally by the 
rich or prodigal part of the community, such as silks of all 
sorts, muslins, cambricks, lawns, superfine cloths, spirits, wines, 
etc., etc. 

"Such an impost would ease the husbandman, the mechanic, 



VI.l PELATIAH WEBSTER'S INVENTION 145 

and the poor ; would have all the practical effects of a sumptu- 
ary law; would mend the economy, and increase the industry of 
the community; would be collected without the shocking cir- 
cumstances of collectors and their warrants; and make the 
quantity of tax paid always depend on the choice of the person 
who pays it. 

" This tax can be laid by the supreme authority much more con- 
veniently than by the particular Assemblies, and would in no case 
be subject to their repeals or modifications, and, of course, the pub- 
lic credit would never be dependent on, or liable to bankruptcy 
by the humors of any particular Assembly. In an Essay on 
Finance, which I design soon to offer to the public, this subject 
will be treated more fully. (See my ' Sixth Essay on Free Trade 
and Finance,' p. 229.) " 

This scientific writer on finance and trained student of gov- Prejudice in 
ernment and law knew perfectly well that no federal system i^e state ux"^ 
that ever existed had been armed with the power to tax; he ation deep- 
knew perfectly well that his proposal was without a precedent '°°'^^- 
in history; and he perfectly understood the deep-rooted pre- 
judice in favor of the exclusive power of the states to tax,^ as 
that prejudice had been portrayed in Mr. Bland's statement 
of January 27. With consummate art he rested his argument 
in favor of his revolutionary proposal upon the absolute neces- 
sity that demanded it. He condensed it all into a narrow com- 
pass when he admitted that the "power of taxation" is "a Webster's 
dreadful engine of oppression, tyranny, and injury, when ill defense of his 
used; yet from the necessity of the case it must be admitted, of federal 
. . . On the whole, I take it that the very existence and use of ta,xation. 
our Union essentially depends on the full energy and final effect 
of the laws made to support it, and therefore I sacrifice all other 
considerations to this energy and effect, and if our Union is not 
worth this purchase, we must give it up — the nature of the 
thing does not admit of any other alternative. I do contend 

^ On that point Madison said: " It the Government of the Union; not- 
required but little time, after taking withstanding the urgent demands of 
my seat in the House of Delegates in the Federal Treasury, the glaring 
May, 1784, to discover, that however inadequacy of the authorized mode 
favorable the general disposition of of supplying it, the rapid growth of 
the State might be towards the Con- anarchy in the Federal system, and 
federacy, the Legislature retained the animosity kindled among the 
the aversion of its predecessors to states by their conflicting regula- 
transfers of power from the State to tions." Madison Papers, ii, 694. 



146 



THE AMERICAN CONSTITUTION 



[Ch. 



A completely 
organized 
government 
a necessity. 



Division of a 
federal state 
into three 
departments. 



Montesquieu 
and single 
states. 



that our Union is worth this purchase." Upon that vital issue 
he staked all, and won all. The moment his fundamental and 
revolutionary concept as to taxation was accepted, all other 
changes followed as mere corollaries. So soon as it was settled 
that a new federal fabric was to be created with an independent 
power of taxation, it followed that such a government must be 
endowed with the authority to execute its own laws and decrees 
directly upon individuals through machinery adequate to that 
end. From the original concept necessarily resulted a com- 
pletely organized government "with the usual branches, legis- 
lative, executive, and judicial; with the direct power of taxation 
and the other usual powers of a government; with its army, 
its navy, its civil service, and all the usual apparatus of a gov- 
ernment, all bearing directly upon every citizen of the Union 
without any reference to the governments of the several 
states." 1 

Webster's first great step forced him to take the second, 
scarcely less momentous, which involved the division of the 
new federal state into three departments — legislative, execu- 
tive, and judicial — something never heard of before in the 
world's history. The idea of a division of a single state into 
three departments originated in England, where it appeared as 
the unpremeditated outcome of political evolution. As a scien- 
tific formula the maxim as to the division of powers was first 
expounded by Montesquieu, who accepted it in the qualified 
sense in which it existed in the English system.'* In that quali- 
fied sense it passed into the first American state constitutions. 
As Madison has well expressed it, "On the slightest view of 
the British Constitution we must perceive that the legislative, 
executive, and judiciary departments are by no means totally 
separate and distinct from each other." ' Speaking of the 
constitution of the states he said : " If we look into the constitu- 
tion of the several states, we find, that, notwithstanding the 
emphatical, and, in some instances, the unqualified terms in 
which the axiom has been laid down, there is not a single in- 
stance in which the several departments of power have been 
kept absolutely separate and distinct." * As a political dogma 



^ These are the attributes which 
Mr. Freeman says a "composite 
state" must possess. Federal Govt., 
i, II. 



* Spirit of Laws, bk. xi, ch. 6. 

* Federalist, no. xlvi, p. 335- 

* Ibid. 337. 



VI.] PELATIAH WEBSTER S INVENTION I47 

it was first formulated in this country by George Mason in the 
Bill of Rights of Virginia's Constitution of 1776, which provides Definition in 
"that the legislative and executive powers of the state should o/p^°jf.^ ^^^ 
be separate and distinct from the judiciary." But when the 
time came for Franklin to draft our first Federal Constitution, 
it never occurred to a mind even as acute as his that a. federal 
state could be divided into three departments — executive, 
legislative, and judicial — for the simple reason that no preced- 
ing federal state had ever been so divided. In obedience to pre- 
cedent the total federal power was vested and confused, under 
our first Constitution, in the one-chamber body known as the First Constitu- 
Congress of the Confederation. As Ford has well expressed it : ^^°^ vested all 

. . power m a one- 

"The general government, called into existence by the Articles chamber 

of Confederation, which had been modeled on the Batavian and assembly. 
Helvetic constitutions, was but a legislative dependent of the 
state legislatures, with scarcely a shadow of executive or judi- 
cial power, and was therefore equally impotent to protect." ^ 
Pelatiah Webster in criticising the Articles of Confederation 
said: "i. It blended the legislative and executive powers 
together in one body. ... 9. They could institute no general 
judiciary powers." He was to have the honor of proposing, for 
the first time in the world's history, the division of a federal A bicameral 
government into three departments — executive, legislative, ^^^^^ ^^^ 
and judicial. After stating what he calls "my first great prin- 
ciple," after stating that his new creation must "of necessity 
be vested with the power of taxation," he assumes in the 
second place that it must be divided, as the several state gov- 
ernments are divided, into three departments, the separate 
organization of each of which he undertook to work out. Some 
writers, unfamiliar with Webster's work, have erroneously 
assumed that the necessity for such a division was first stated 
by Jefferson, who, in a letter to Madison written from Paris, Jefferson's 
December 16, 1786, used this language: "To make us one '"^^iorsement. 
nation, as to foreign concerns, and keep us distinct in domestic 
ones, gives the outline of the proper division of powers be- 
tween the general and particular governments. But to enable 
the federal head to exercise the powers given to best advant- 
age, it should be organized as the particular ones are into legis- 
lative, executive, and judiciary." ^ Nearly four years before, that 

* Federalist, Introd., p. x. 

* See Jefferson's Correspondence, by T. J. Randolph, ii, 64, 65. 



148 



THE AMERICAN CONSTITUTION . 



[Ch. 



A President 
surrounded 
by a cabinet 
council. 



Ministers to 
sit in Congress 
without the 
right to vote. 



The Swiss 
Executive. 



idea had been fully worked out in Webster's paper of February 
16, 1783. On the day of its publication Jefferson was at Balti- 
more, and two weeks later he came for a visit to Philadelphia, 
after the voyage he was then contemplating to France had 
been abandoned. 

Webster proposed that the executive power should be vested 
in a President surrounded by a cabinet or council composed of 
the "great ministers of state," such President to be elected by 
Congress, as the President of France is now elected. "The 
financier manages the whole subject of revenues and expend- 
itures, the Secretary of State takes knowledge of the general 
policy and internal government, the Minister of War presides 
in the whole business of war and defense, and the Minister of 
Foreign Affairs regards the whole state of the nation, as it 
stands related to, or connected with, all foreign powers. I 
mention a Secretary of State because all other nations have 
one, and I suppose we shall need one as much as they, and the 
multiplicity of affairs which naturally fall into his office will 
grow so fast that I imagine we shall soon be under the neces- 
sity of appointing one." Later on he says the "great ministers 
of state . . . shall superintend all the executive departments 
and appoint all executive officers, who shall ever be account- 
able to and removable for just cause by them or Congress, i. e., 
either of them." But far more notable, in the light of existing 
conditions, is this declaration: "I do not mean to give these 
great ministers of state a negative on Congress, but I mean to 
oblige Congress to receive their advices before they pass their 
bills, and that every act shall be void that is not passed with 
these forms; and I further propose that either house of 
Congress may, if they please, admit the said ministers to be 
present and assist in the debates of the house, but without any 
right of vote in the decision." \ 

Under the existing Swiss Constitution the executive power is 
vested, not in the President, but in a council or cabinet of 
seven, known as Bundesrath or Conseil FSdSral, which holds 
office for three years. The Council apportions the departments 
of state among its own members, and "the members of the 
Council have the right to speak and make proposals in either 
house of the Federal Legislature, but not to vote." In his 
famous essay upon Presidential Government,* from which that 
* Freeman's Essays, i, 400 sq. (ed. 1871). 



y 
VI.l PELATIAH WEBSTER'S INVENTION I49 

quotation is taken, Mr. Freeman says: "The Swiss Constitu- 
tion has several points of likeness with that of America, and the 
constitution of the two houses of the Federal Legislature is 
clearly borrowed from the American model." After an adverse Ministers do 
vote has occurred, the Swiss Ministers simply return to their °f* ^^^^^ 
offices and go on with their work until the end of their terms, vote. 
In the light of such an example it is too clear for argument that 
we may adopt so much of the English cabinet system as we 
need and at the same time reject, as Switzerland does, that 
part of it which is not applicable to a federal state like our own. 
The great architect, with his far-seeing eye, was in favor of 
instituting from the very outset a closer connection than now 
exists between the executive and legislative powers, just such 
a connection as Switzerland deemed it wise to introduce in 
remodeling her federal legislature upon our own. The lack of 
such a connection is the root of the evil under which our parlia- 
mentary system is now breaking down. In the First Congress, 
189 bills were introduced ; in the Sixtieth, about 40,000. As the 
legislative business of the country has thus grown in extent and 
complexity the pressure upon the primitive machinery of the 
House of Representatives has increased until at last a crisis has 
been reached. As the glut of legislative timber in the channel 
has increased, Mr. Speaker has been endowed with first one American 
abnormal power and then another in order that legislation may ^p^'^^'^ armed 

^ . . Viith abnormal 

not cease altogether. But the time has now arrived when such powers. 
empirical devices must be superseded by a scientific readjust- 
ment of our parliamentary machinery upon the basis Webster 
originally suggested. Every parliamentary system now existing 
in the world, except our own, which has been copied from the 
English, has reproduced in some form the mainspring, the 
driving force of the original upon which its harmony chiefly 
depends. That mainspring or driving force is embodied in the Right of cabi- 
right of the cabinet to appear in the popular chamber for the j^gi^tj^*'^** 
purpose of initiating legislation upon the great questions in 
which the nation is vitally concerned, and then of driving such 
legislation to a final vote. The lack of that practical business 
expedient, which everybody except ourselves enjoys, and which 
the vast and rapidly swelling volume of our legislative business 
urgently demands, has produced the abnormal, almost revo- 
lutionary condition under which we now groan. The author 



/ 



ISO 



Webster first 
proposed a 
two-chamber 
Federal Con- 
gress. 



His reasons for 
the unpre- 
cedented 
change. 



THE AMERICAN CONSTITUTION 



[Ch. 



has been contending for years that the whole difficulty may be 
removed, without a constitutional amendment, by a brief act 
of Congress, and a modification of existing parliamentary rules 
to be made upon the basis of Webster's original suggestion, sup- 
plemented by the Swiss experiment now in successful opera- 
tion.^ 

Just as the state constitutions admonished Webster to split 
the new Federal Government into three departments, execu- 
tive, legislative, and judicial, the bicameral state legislatures 
admonished him to split the one-chamber Congress of the Con- 
federation into an upper and a lower house. In constructing 
that body on the one-chamber plan, Franklin was content to 
follow a model two thousand years old, but in criticising his 
work Webster said: "This body, viz., Congress, consisted of 
but one house, without any check upon their resolutions." As 
a remedy he proposed "that the Congress shall consist of two 
chambers, an upper and a lower house, or senate and commons, 
with the concurrence of both necessary to every act; and 
that every state send one or more delegates to each house. 
This will subject every act to two discussions before two 
distinct chambers of men equally qualified for the debate, 
equally masters of the subject, and of equal authority in the 
decision. These two houses will be governed by the same 
natural motives and interests, viz., the good of the Common- 
wealth, and the approbation of the people. Whilst at the same 
time, the emulation naturally arising between them will induce 
a very critical and sharp-sighted inspection into the motives of 
each other. Their different opinions will bring on conferences 
between the two houses, in which the whole subject will be 
exhausted in arguments pro and con, and shame will be the 
portion of obstinate, convicted error. ... I am not of opinion 
that bodies of elective men, which usually compose Parlia- 
ments, Diets, Assemblies, Congresses, etc., are commonly dis- 
honest; but I believe it rarely happens that there are not 
designing men among them; and I think it would be much 
more difficult for them to unite their partisans in two houses, 
and corrupt or deceive them both, than to carry on their 
designs where there is but one unalarmed, unapprehensive 

* See the author's article, en- ers," in the North American Review 
titled "The Speaker and his Pow- for October, 1908. 



VL] PELATIAH WEBSTER'S INVENTION 151 

house to be managed." Such were the terms in which the 
world was first addressed in favor of a federal assembly of two 
chambers instead of one. In commenting upon the manner in 
which the members should be chosen, Webster said: "The 
delegates which are to form that august body, which are to How the dele- 
hold and exercise the supreme authority, ought to be ap- ^e^^^g^^ *° 
pointed by the States in any manner they please ; in which they 
should not be limited by any restrictions; their own dignity 
and the weight they will hold in the great public councils, will 
always depend on the abilities of the persons they appoint to 
represent them there." ^ One of the worst provisions in the 
Articles of Confederation was that which compelled a member 
to retire from Congress after he had served three years. At the 
height of his usefulness Madison was forced to quit on that 
account. In denouncing that rule Webster said: "I have no oidone-tenn 
objection to the states electing and recalling their delegates as nounced. 
often as they please, but think it hard and very injurious both 
to them and the Commonwealth that they should be obliged 
to discontinue them after three years' service, if they find 
them on that trial to be men of sufficient integrity and abil- 
ities; a man of that experience is certainly more qualified to 
serve in the place than a new member of equal good character 
can be ; experience makes perfect in every kind of business — 
old experienced statesmen of tried and approved integrity and 
abilities are a great blessing to a state — they acquire great 
authority and esteem as well as wisdom, and very much con- 
tribute to keep the system of government in good and salutary 
order ; and this furnishes the strongest reason why they should 
be continued in the service, on Plato's great maxim that 'the 
man best qualified to serve, ought to be appointed.' " Finally 
he said: "It is necessary that Congress should have all usual Congress to 

J e It ^' J J A_ be armed with 

and necessary powers of self-preservation and order, e. g., to all necessary 
imprison for contempt, insult, or interruption, etc., and to powers, 
expel their own members for due causes, among which I would 
rank that of non-attendance on the house, or partial attend- 
ance without such excuse as shall satisfy the house." With a 

^ Again he says on that subject: they have the confidence of their 

" As Congress will ever be composed several states and understand well 

of men delegated by the several the policy and present condition of 

states, it may well be supposed that them." 



152 THE AMERICAN CONSTITUTION [Ch. 

touch of grim humor he adds: "The consultations and decis- 
ions of national councils are so very important that the fate of 
millions depends on them, therefore no man ought to speak to 
such assemblies without considering that the fate of millions 
hangs on his tongue. ... A man must therefore be most 
inexcusable who is either absent during debates, or sleeps, or 
whispers, or catches flies during the argument, and just rouses 
when the vote is called to give his yea or nay to the weal or woe 
of a nation." Like a steam hammer which is so nicely adjusted 
that it may either crush a mass of iron or crack the crystal of a 
watch, this august intellect could either solve the gravest and 
most far-reaching of human problems, or discuss with pains- 
taking minuteness commonplace details. 
Federal While the Articles of Confederation did not attempt to 

outlineZ Create a federal judiciary, the ninth Article did provide that 

"the United States in Congress assembled shall also be the 
last resort on appeal in all disputes and differences now sub- 
sisting or that hereafter may arise between two or more states 
concerning boundary, jurisdiction, or any other cause what- 
ever," — a jurisdiction inherited from the Privy Council.^ 
"Before the Revolution, the British Privy Council had adjudi- 
cated on certain questions arising betwen colony and col- 
ony." 2 Several controversies between the states were actually 
brought before Congress for adjudication under the foregoing 
Article; and in two of them — Pennsylvania v. Connecticut 
(1781) and Massachusetts z;. New York (1784) — the agents of 
the contending states were directed to "appoint by joint con- 
sent commissioners or judges to constitute a court for hearing 
and determining the matter in question, agreeably to the 9th 
Article of the Confederation, which they succeeded in doing." ^ 
An important count of Webster's indictment against the Arti- 
cles of Confederation was that "they could institute no gen- 
eral judiciary powers." That difficulty he proposed to remove 

* In Rhode Island v. Massachu- their boundaries, which arose under 

setts, 12 Peters, 723, the Court said: their respective charters and had 

"It is a part of the public history continued from the first settlement 

of the United States, of which we of the colonies." 

cannot be judicially ignorant, that * Maine, Popular Government, p. 

at the adoption of the Constitution 217, note 7. 

there were existing controversies * See Taylor, Jur. and Pro. Su- 

between eleven states respecting preme Court 0/ the United States, 9. 



VI.] FELATIAH WEBSTER'S INVENTION 1 53 

by creating a Supreme Court, and such inferior courts of law A Supreme 
and equity as the necessities of the country might require. He 9°^^i '"}^^ 

flic ^ .,..,,.,,.., , junsdiction 

outhned the bupreme Court, with jurisdiction both original and original and 
appellate, in these terms: "That the supreme authority should appellate. 
be vested with powers to terminate and finally decide contro- 
versies arising between different states, I take it, will be uni- 
versally admitted, but I humbly apprehend that an appeal 
from the first instance of trial ought to be admitted in causes 
of great moment, on the same reasons that such appeals are 
admitted in all the states of Europe. It is well known to all 
men versed in courts, that the first hearing of a cause rather 
gives an opening to that evidence and reason which ought to 
decide it, than such a full examination and thorough discus- 
sion, as should always precede a final judgment in causes of 
national consequence. A detail of reasons might be added, 
which I deem it unnecessary to enlarge on here." Thus 
emerged the splendid conception of the Supreme Court of the 
United States as it now exists, armed not only with original 
jurisdiction "to terminate and finally decide controversies 
arising between different states," but also with an appellate 
jurisdiction "in causes of great moment, on the same reasons 
that such appeals are admitted in all the states of Europe." 
In due time the Court, with a double jurisdiction thus defined, 
held that Congress is powerless to reapportion the original and 
appellate jurisdictions according to the will of that body.'^ As 
to the inferior federal courts he contented himself with this Inferior fed- 
declaration: "To these I would add Judges of Law and Chan- f^"^' ^^J'^' ^^ 
eery; but I fear they will not be very soon appointed — the equity. 
one supposes the existence of law, the other of equity — arici 
when we shall be altogether convinced of the absolute neces- 
sity of the real and effectual existence of both of these, we shall 
probably appoint proper heads to preside in these departments." 
When our federal judicial system, as designed by Webster, 
found a real expounder in Marshall, one of the gravest tasks he 
was called upon to perform was that involved in the establish- 
ment of the constitutional supremacy of the Supreme Court 
over judgments of state courts denying federal rights. In the 
great case of Cohens v. Virginia,^ presenting the solemn refusal 

* Marbury v. Madison, I Cranch, 138. 
' 6 Wheat. 264. 



154 



THE AMERICAN CONSTITUTION 



[Ch. 



Webster 
defined 
supremacy 
of federal 
law. 



Remedy when 
resisted by 
force in any ■ 
state. I 

I 



Reserved 

rights of states 

carefully 

guarded. 



of the Virginia Court of Appeals to obey the mandate of the 
Supreme Court of the United States, the ultimate question 
involved was the supremacy of federal law. It is hard not to 
marvel when we see how perfectly Webster anticipated and pro- 
vided for that very contingency when he said: " i. No laws of 
any state whatever, which do not carry in them a force which 
extends to their effectual and final execution, can afford a cer- 
tain or sufficient security to the subject. This is too plain to 
need any proof. 2. Laws or ordinances of any kind (especially 
of august bodies of high dignity and consequence), which fail of 
execution, are much worse than none. They weaken the gov- 
ernment, expose it to contempt, destroy the confidence of alli 
men, native and foreigners, in it, and expose both aggregate 
bodies and individuals who have placed confidence in it to 
many ruinous disappointments which they would have escaped 
had no law or ordinance been made; therefore, 3. To appoint a 
Congress with powers to do all acts necessary for the support 
and uses of the Union ; and at the same time to leave all the 
states at liberty to obey them or not with impunity, is, in 
every view, the grossest absurdity. . . . Further I propose, 
thai if the execution of any act or order of the supreme authority 
shall be opposed by force in any of the states (which God forbid), 
it shall be lawful for Congress to send into such state a sufficient 
force to suppress it. On the whole, I take it that the very exist- 
ence and use of our Union essentially depends on the full 
energy and final effect of the laws made to support it, and there- 
fore I sacrifice all other considerations to this energy and effect, 
and if our Union is not worth this purchase, we must give it 
up — the nature of the thing does not admit of any other 
alternative." 

Webster was no more eager to arm his new federal creation 
with supremacy in the event that its laws or mandates should be 
defied by the states than he was to guard against its intrusion 
such rights as the states reserved to themselves. Nothing 
could be more explicit on that subject than these declarations: 
" II. But now the great and most difficult part of this weighty 
subject remains to be considered, viz., how these supreme 
powers are to be constituted in such manner that they may be 
able to exercise with full force and effect the vast authorities 
committed to them for the good and well being of the United 



VI.] PELATIAH WEBSTER'S INVENTION 155 

States, and yet be so checked and restrained from exercising 
them to the injury and ruin of the states that we may with 
safety trust them with a commission of such vast magnitude — 
and may Almighty Wisdom direct my pen in this arduous dis- 
cussion. ... I propose further that the powers of Congress, 
and all the other departments acting under them, shall all be 
restricted to such matters only of general necessity and utility 
to all the states as cannot come within the jurisdiction of any 
particular state, or to which the authority of any particular 
state is not competent, so that each particular state shall enjoy 
all sovereignty and supreme authority to all intents and 
purposes, excepting only those high authorities and powers by 
them delegated to Congress for the purposes of the general 
union." Let us place in juxtaposition with that ample state- Webster's 
ment the meagre terms of the Tenth Amendment, which statement far 

t 1 1 T T • J c more ample 

declares that "the powers not delegated to the United States than Tenth 
by the Constitution, nor prohibited by it to the States, are Amendment, 
reserved to the states respectively, or to the people." According 
to Webster's conception of it the new federal system was to be 
one of delegated and strictly limited powers, and yet one abso- 
lutely supreme within the limits of its jurisdiction as ultimately 
defined by its own tribunals. From the very nature of such a 
system, which has no prototype in history, was deduced the 
judge-made right to declare void a national law when the 
federal courts conclude that such a law is in conflict with the 
Constitution itself. The invincible logic employed by Mar- 
shall in the first assertion of that right rested necessarily on the 
admission that it is a mere deduction from the general nature 
of a system of government whose Constitution does not under- 
take to grant it in express terms. 

Thus with a fullness and lucidity that could hardly have Great 
been surpassed in a first effort, Pelatiah Webster, on February invention 

synchronizes 

16, 1783, just four years and three months before the Fed- with failure 
eral Convention of 1787 met, gave to the world, as his inven- °^ ^^°^^ 
tion, the entirely new plan of federal government now embod- 
ied in the existing Constitution of the United States. This 
greatest of all contributions to modern political science was 
laid at the doors of the Congress of the Confederation just at 
the moment when a final judgment of condemnation was about 
to be pronounced against the old quota system as a practical 



156 



THE AMERICAN CONSTITUTION 



[Ch. 



Lack of power 
in Congress to 
levy a tax on 
imports. 



means of raising revenue. The cessation of hostilities with 
Great Britain, followed as it was by the signing of the pre- 
liminary articles of peace at Paris, January 20, 1783, had 
brought the financiers of the Revolution face to face with the 
mighty problem of providing, without any visible or reliable 
means, for the debts that represented the cost of victory. In 
estimating that cost Congress said: "The amount of these 
debts, as far as they can now be ascertained, is forty-two mil- 
lions three hundred and seventy-five dollars. . . . The amount 
of the annual interest is computed to be two millions four hun- 
dred and fifteen thousand nine hundred and fifty-six dollars. 
Funds, therefore, which will certainly and punctually produce 
this sum at least must be provided." In attempting to provide 
such funds Congress, after frankly admitting the inadequacy 
of the quota system, appealed to the states so to amend the 
Articles of Confederation as to permit Congress to levy a tax 
on imports, for the term of twenty-five years, in such a way as 
to produce annually the sum of "nine hundred and fifteen 
thousand nine hundred and fifty-six dollars. . . . The residue 
of the computed interest is one million five hundred thousand 
dollars, and is referred to the states to be provided for by such 
funds as they may judge most convenient." ^ Since February 
3, 1 78 1, Congress had been imploring the states to make such 
a concession; and its prayer would have been answered had 
it not been for the action of Rhode Island whose assembly on 
November i, 1782, unanimously refused to concede to the 
Confederation the right to raise revenue by duties on import- 
Rhode Island's ations. That refusal was based on three grounds: (i) because 
such an impost would bear hardest on the commercial states, 
particularly upon Rhode Island ; (2) because it would involve 
the introduction of officers unknown to the Constitution; 
(3) because a revenue for the expenditure of which Congress is 
not to be accountable to the states would render that body 
independent of its constituents, and would be dangerous to the 
liberties of the United States. ^ Thus was revealed the terrible 
power of a single state to destroy any attempt to create a uni- 
form commercial or financial system by an arbitrary or selfish 



veto. 



* Madison Papers, 
no. 2, vi-viii. 



i, Appendix 



* Bradford, the Speaker, to the 



President of Congress, Nov. 30, 
1782. Records of Rhode Island, ix, 
682, 683, 684. 



VI.l PELATIAH WEBSTER'S INVENTION 1 57 

veto. From that obstinate and destructive attitude Rhode 
Island never receded, despite Washington's circular letter to 
the governors of all the states,^ urging the necessity of granting 
to Congress some power to provide a national revenue, and 
despite Congress's frantic appeal to the states, in the final reso- 
lution of April 18, 1783,^ for power to levy specific duties on 
certain enumerated articles, and five per cent on others. Even 
the imploring answer made by Hamilton, Madison, and Fitz- 
simons to Rhode Island's objections, was all in vain.' Her for- 
tunate refusal to listen to reason was the death knell to the Death knell of 
Confederation. After she succeeded in defeating the final ° ^ eratioa. 
attempt to secure a revenue to be derived from imports as 
embodied in the resolution of April 18, 1783, — to which some 
of the states gave an unqualified, and others a conditional 
approval, — compliance with the requisitions grew more and 
more lax, until at last in 1786 a committee of Congress reported 
that any further reliance on requisitions would be "dishonor- 
able to the understanding of those who entertain such con- 
fidence." ^ The last stage of the expiring system has already 
been depicted in the despairing words of Hamilton, who said in 
the speech delivered in the legislature of New York in Febru- 
ary, 1787 : " Connecticut and New Jersey have almost formally 
declined paying any longer. The ostensible motive is the non- 
concurrence of this state in the impost system. The real one 
must be conjectured from the fact. Pennsylvania, if I under- 
stand the scope of some late resolutions, means to discontinue 
the interest she pays upon her assumption to her own citizens ; 
in which case there will be little coming from her to the United 
States. This seems to be bringing matters to a crisis. The 
pecuniary support of the Federal Government has of late de- 
volved almost entirely upon Pennsylvania and New York. If 

* He declared that it was the duty that Congress are under of repre- 
of the states, without "hesitating a senting to the immediate and im- 
single moment," to give their sane- partial consideration of the several 
tion to the act of Congress establish- states the utter impossibility of 
ing a revenue for the United States. maintaining and preserving the 

' Madison Papers, i, 447. faith of the Federal Government by 

' Ibid., Appendix no. 3, xii-xix. temporary requisitions on the states, 

* Journals of Congress, iv, 619. and the consequent necessity of an 
In that report the committee said early and complete accession of all 
they were "seriously impressed the states to the revenue system of 
with the indispensable obligation the eighteenth of April, 1783." 



158 



THE AMERICAN CONSTITUTION 



[Ch. 



A benefactor 
in disguise. 



Continental 
Congress in 
1783; 



its decadence. 



Pennsylvania refuses to continue her aid, what will be the situa- 
tion of New York? Are we willing to be the Atlas of the 
Union? or are we willing to see it perish?" In bringing about 
that desperate condition of things which forced the meeting of 
the Federal Convention of 1787, Rhode Island was really a 
benefactor in disguise. In demonstrating through her selfish 
and irrevocable veto the worthlessness and danger of the 
ancient quota system she paved the way for the acceptance of 
the epoch-making invention of February 16, 1783, which was 
destined to revolutionize federalism as a system of govern- 
ment not only in this country but throughout the world. 

As that invention was finally presented to the Federal Con- 
vention by three brilliant young members of the Congress of 
the Confederation, it will be helpful to glance at the character 
and composition of that body at the time Pelatiah Webster 
published his entirely new plan of federal government at its 
very doors. ^ The record of a vote taken on February 14, 1783, 
shows that the following delegates were then present: New 
Hampshire, Gilman and White; Massachusetts, Holten and 
Gorham; Rhode Island, Collins and Arnold; Connecticut, 
Wolcott and Dyer; New York, Floyd and Hamilton; New 
Jersey, Boudinot, Elmer, and Condict; Pennsylvania, Mifflin, 
Fitzsimons, Wilson, and Montgomery; Maryland, Carroll; 
Virginia, Jones, Madison, Bland, Lee, and Mercer; North Car- 
olina, Hawkins and Williamson; South Carolina, Rutledge, 
Ramsay, Izard, and Gervais. Certainly no public assembly 
was ever in greater need of a guiding mind or a guiding hand. 
At the date in question the Congress was fading surely, and not 
very slowly, into the shadow of a name ; its decadence was al- 
ready so marked that men of the first class were with difficulty 

* The Congress was then sitting between the doors of the State 

House from Chestnut Street above 
Fifth, where Congress was sitting 
in 1783 and the Coffee House re- 
ferred to in the Bradford Imprint, 
was five blocks, four of them being 
on Chestnut Street, and one of them 
being the distance between High 
Street and Chestnut Street." For 
these facts I am indebted to the 
kindness of Hampton L. Carson, 
Esq., the eminent Philadelphia 
jurist. 



at Philadelphia in the chamber in 
the State House since known as 
Independence Hall. The title-page 
of Pelatiah Webster's "Disserta- 
tion" shows that it was "Printed 
and sold by T. Bradford, in Front 
Street, three Doors below the Coffee 
House, MDCCLXxxni." The Coffee 
House "was known as the London 
Coffee House, at the corner of Front 
Street and High Street (now Mar- 
ket Street). The exact distance 



VI.I PELATIAH WEBSTER'S INVENTION 159 

persuaded to permit themselves to be chosen members of it; 
long after the day named for the commencement of a session 
no quorum would be present until at times it seemed as if the 
government would become simply non-existent; delegations 
from certain states often failed to attend altogether.^ On Feb- 
ruary 21, 1783, it was "resolved, that it be recommended to 
the states of Delaware, Maryland and Georgia to send dele- 
gates immediately to the Congress, and to each state in the 
Union, to keep up a constant representation." That resolu- 
tion was prompted by the fact that the divisions during the 
earlier part of that month had disclosed that only twenty-seven Only twenty- 
delegates were present from eleven states.^ Of the fourteen seven deie- 

. ^ gates from 

Presidents of the Congress between 1774 and 1789 only Ran- eleven states. 

dolph, Hancock, and Laurens are remembered in a popular 

way in that capacity; Jay, St. Clair, MifHin, and Lee are 

remembered for other things ; while Griffin, Hanson, Gorham, 

and Boudinot are scarcely remembered at all, except by special 

students of American history.^ The last named was President 

on June 21, 1783, when Congress, after being driven from 

Philadelphia by a handful of drunken soldiers, fled across the 

river to Princeton where the college offered shelter. Thence 

it skipped about to Annapolis, to Trenton, to New York,* ings. 

^ Morse, Life of Hamilton, i, 96, met on Saturday the 27th of that 

97, 202. month, and on the same day ad- 

* MS. Records of the Continental journed to meet at York in the 
Congress. same state, at which place it as- 

» See The Critical Period, 99. sembled on Tuesday the 30th of the 

* The Congress of the Revolution same month. It remained in York 
first met in Philadelphia, Pa., on until Saturday, June 27, 1778, when, 
September 5, 1774, and remained in view of the evacuation of Phil- 
there until Wednesday, December adelphia by the British, it adjourned 
12, 1776, when it adjourned to Balti- to that city, where it held its next 
more, Md., in consequence of the session on Thursday, July 2, 1778. 
approach of the British army. It It remained in Philadelphia until 
met in Baltimore Friday, December June 21, 1783, when in consequence 
20, 1776, and remained there until of the menacing demonstration to- 
February 27, 1777, when it ad- ward it by the unpaid soldiers of the 
journed to Philadelphia, where it Revolutionary Army, it adjourned 
met on the 4th of the next March to meet either at Trenton or Prince- 
and adjourned from day to day until ton, N. J., as the President might 
the I2th of that month. On the 1 8th direct. Upon the summons of the 
of September, 1777, military neces- President it met at Princeton on the 
sity again led to its removal from 30th of June and continued to hold 
Philadelphia. It thereupon ad- its sessions there until November 4, 
journed to Lancaster, Pa., where it 1783. On November 26, 1783, it met 



Its wander- 



i6o 



THE AMERICAN CONSTITUTION 



[Ch. 



Madison, 
Hamilton, and 
Pinckney. 



until it became a laughing-stock, and its wanderings the sub- 
ject of newspaper squibs. And yet, despite its weakness, irre- 
solution, and gloom, this nondescript assembly — so rich in 
duties and responsibilities and so poor in powers and resources 
— was blessed during the critical period by the presence of 
three rising young statesmen who would have adorned any age 
or any country. James Madison had taken his seat as a work- 
ing member as early as March 20, 1780; Alexander Hamilton 
came to divide the honors with him in November, 1782; 
Charles Pinckney did not arrive until November, 1784. On 
the day Pelatiah Webster laid his wholly novel plan of a fed- 
eral government at the doors of Congress, Madison, then 
thirty-two, and Hamilton, then twenty-six, were present at 
Philadelphia deeply absorbed in the discussion of the problem 
of problems it was destined to solve. No biographer of Madi- 
son, Hamilton, or Pinckney has ever claimed that, down to 
that time or for at least four years thereafter, either one of 
them ever proposed or formulated any kind of a new constitu- 
tion. And certainly prior to February 16, 1783, no one of them 
had, by any public act in Congress, attempted to bring about 
the calling of a federal convention armed with the power to 
make a new constitution. Such were the conditions under 
which Madison and Hamilton were brought face to face at 
Philadelphia with the bold innovator who, after proposing as 
early as 1781 that a "Continental Convention" should be 
called for the making of a new constitution, gave to the world. 



in Annapolis, Md., where it re- 
mained until June 3, 1784. It next 
met in Trenton, N. J., from Novem- 
ber I, 1784, until December 24, 
1784, when it adjourned to meet in 
the city of New York. It met in 
New York City on January 11, 1785, 
and continued to meet there until 
March 4, 1789, when it was suc- 
ceeded by the Congress provided for 
in the Constitution. The Congress 
provided for by the Constitution 
first met in New York City. The 
first Wednesday, which was the 4th 
day of March, 1789, was the day 
appointed by the resolution of Sep- 
tember 12, 1788, for "commenc- 
ing proceedings" by the Congress 



provided for by the Constitution, 
and several members of each house 
were present on that day, but no 
quorum appeared in the House of 
Representatives until the ist of 
April, 1789, nor in the Senate until 
the 6th of that month. On Decem- 
ber 6, 1790, Congress removed to 
Philadelphia, chosen by the act of 
July 16, 1790, as the temporary seat 
of government until its removal to 
the District of Columbia where Con- 
gress actually met for the first time 
on November 21, 1800, in the north 
wing of the Capitol, then the only 
completed part of the building. See 
Origin and Government of the Dis- 
trict of Columbia, 12-13, 57, 102. 



VI.l PELATIAH WEBSTER'S INVENTION l6l 

as his invention, an entirely new plan of federal government 
worked out in detail. 

There can be no question that Webster and Hamilton pos- Webster and 
sessed the most original and creative minds of that epoch, so gmanciere^d 
far as finance and economics were concerned. Robert Morris, economists. 
a skillful administrator of finance, was not in their class as a 
thinker. It is interesting to see how it was that Webster and 
Hamilton made Morris possible. Professor Sumner, who has Prof. Sumner 
written the best book on the finances of the Revolution, told ^^^^^^ * ^" 
the whole story when he said: "In February, 1780, Pelatiah 
Webster urged the appointment of a financier, that is of a com- 
petent single officer to take charge of the finances, in place of 
the committees or boards who had hitherto been intrusted with 
them.^ In September of the same year Alexander Hamilton 
urged the same view, that there should be single responsible 
heads of the great departments, 'Mr. Robert Morris would 
have many things in his favor for the department of finance.' " * 
Again Professor Sumner says: "Pelatiah Webster asserted in 
1785, that forty or fifty per cent more could be obtained for 
labor and country produce than in 1774. Hamilton said that 
labor was much dearer in 1782 than before the war." ^ Such 
was the perfectly normal relation existing between the ma- 
ture and experienced financier and economist of fifty-seven and 
the brilliant and precocious young statesman of twenty-six. 
Gifted as they both were by nature, the advantage of thirty- 
one years in age and experience made the one the teacher, the 
leader of the other. Nothing is more creditable to the young 
man of action than the decisive promptness with which he 
followed after his leader had blazed the way. Madison says How Webster 
Webster was the first to propose the calling of a Federal Con- ^^^ ^^^ 
vention, in 1781; in July, 1782, the legislature of New York the Federal 
passed resolutions, "which Hamilton probably drafted,"* of^i?!?.'^'''' 
inviting Congress "to recommend and each state to adopt the 

^ In his preface (Hi), Professor 261; Hamilton's Works, i, 215. 

Sumner says: "The finances of the ' Ibid., ii, 180, 181. 

Continental Congress had no proper * Bancroft, History of the Con- 

boundary. In one point of view they stitution, i, 38-39 and note: "The 

seem never to have had any finances; grounds for believing Hamilton to 

in another the whole administration have been the draughtsman of the 

was financial." resolutions are solely the circum- 

^ The Financier and the Finances stances above related, and that the 

of the American Revolution, i, 260- language bears his impress." 



l62 



THE AMERICAN CONSTITUTION 



[Ch. 



Charles Pinck- 
ney comes 
upon the 
scene. 



Madison, 
Hamilton, and 
Pinckney 
marched be- 
hind Webster. 



measure of assembling a general convention of the states spe- 
cially authorized to revise and amend the Confederation." On 
February i6, 1783, Webster published at Philadelphia the 
programme that convention was to adopt; and on April i of 
that year Hamilton expressed in Congress, /or the first time, his 
desire "to see a general convention take place, and that he 
would soon, in pursuance of instructions from his constituents, 
propose to Congress a plan for that purpose." ^ On April 28, 
and "so far as the records show never till then,'' Congress ap- 
pointed a Committee on pending resolutions in favor of a gen- 
eral convention. 2 Madison soon followed in the same path. 
As he tells us himself: "In a letter to James Madison from 
R. H. Lee, then President of Congress, dated the twenty-sixth 
of November, 1784, he says: 'It is by many here suggested as 
a very necessary step for Congress to take, the calling on the 
states to form a Convention for the sole purpose of revising the 
Confederation, so far as to enable Congress to execute with 
more energy, effect, and vigor the powers assigned to it, than it 
appears by experience that they can do under the present state 
of things.' The answer of Mr. Madison remarks, * I hold it for a 
maxim, that the union of the states is essential to their safety 
against foreign danger and internal contention ; and that the 
perpetuity and efficiency of the present system cannot be con- 
fided in. The question, therefore, is, in what mode, and at 
what moment, the experiment for supplying the defects ought 
to be made.'" ' In the very month in which Madison thus 
answered Lee's letter, Charles Pinckney, who was a year 
younger than Hamilton, took his seat in Congress, there to 
remain until 1787. Thus were united in the work of the Conti- 
nental Congress, during the critical period, Madison, Hamilton, 
and Charles Pinckney, the three youthful statesmen who were 
to take to the Federal Convention of 1787 — after more than 
four years of study and reflection upon it — the essence of 
Webster's epoch-making invention in the form of "plans," 
which, as drafted by Hamilton and Pinckney, were elaborate 
systems of government. At every step the three younger men 
marched behind their great intellectual leader, who, alone of all 



* Madison Papers, i, 429-430. 

* Bancroft, Hist, of the Const., 
i, 105. 



Madison Papers, ii, 707-708. 



VI.] 



PELATIAH WEBSTER'S INVENTION 



163 



the men of that epoch, clearly understood, as early as 1781, 
that the amending of the Articles of Confederation was a 
chimera. Webster tells us that even then he " was fully of opin- 
ion (though the sentiment at that time would not very well 
bear) that it would be ten times easier to form a new constitu- 
tion than to mend the old one. I therefore sat myself down to 
sketch out the leading principles of that political constitution, 
which I thought necessary to the preservation and happiness 
of the United States of America, which are comprised in this 
Dissertation." ^ 



* See Dexter's Yale Biographies 
and Annals, ii, 97 to 102, for a 
sketch of Pelatiah Webster, with 
enumeration of twenty-seven of his 
publications. There the statement 
is made that " it is a matter of tradi- 
tion that members of Congress, es- 
pecially the Connecticut delegates, 
were in the habit of passing the even- 
ing with him, to consult him upon 
financial and political concerns." 
Here the author desires to make 
acknowledgments to Mr. David K. 
Watson, who, in his notable treatise 



on "The Constitution of the United 
States," recently published, has 
made prompt recognition of a part 
of what is due to Pelatiah Webster. 
After congratulating himself upon 
the opportunity afforded by Con- 
gress for inspecting the epoch-mak- 
ing paper of February 16, 1783, he 
says: "In that pamphlet Mr. Web- 
ster undoubtedly outlined to a cer- 
tain degree the Constitution as it 
was subsequently adopted." (Vol. 
i, p. 81.) 



CHAPTER VII 



THE FEDERAL CONVENTION OF 1 787 AND ITS WORK 



Attempts 
to solve a 
mighty pro- 
blem with 
main factor 
omitted. 



A miracle 
of finance. 



The financier 
of the Revo- 
lution. 



As all preceding attempts to dramatize the proceedings of 
the Federal Convention have carefully excluded the leading 
actor from the stage, they have necessarily resulted in painfully 
accurate reproductions of the play of "Hamlet," with Hamlet 
left out. Such attempts to solve a mighty problem with the 
main factor omitted have involved the employment of fab- 
ulous stories and misty theories in conflict with experience and 
common sense. In the light of the documentary evidence now 
available, such expedients are no longer necessary. Admitting 
that the Convention performed "the most wonderful work 
ever struck off at a given time by the brain and purpose of 
man," it is now quite obvious that no supernormal processes, 
no miraculous interventions entered into the result. Some- 
thing very nearly akin to the miraculous happens whenever, at 
a turning-point in the world's history, some specially gifted 
human being gives birth to an idea that ripens into an immor- 
tality. That kind of a miracle happened when on February 16, 
1783, an intensely practical man, of wonderful insight and with 
a genius for finance, announced an entirely new plan of federal 
government in which the centre of gravity is vested in the cor- 
porate person of the federal body and not in the states compos- 
ing the aggregate. In a word, the transition from the ancient 
type of a "confederated state," resting on the old quota 
system, to the new type of a "composite state," operating 
directly upon every citizen, was brought about by a readjust- 
ment of the taxing power on an entirely new basis. If the 
bringing about of that transition may be called a miracle, it 
was a miracle of finance. It is not therefore strange that 
it should have been performed by a financier equally familiar 
with the theoretical and practical sides of his subject. Cer- 
tainly after that event nothing that can be called miraculous 
occurred. The problem that remained simply involved the 
arduous task of adapting, through ordinary human agencies, 
to the most difficult and complex conditions, an invention whose 



VII.] THE FEDERAL CONVENTION AND ITS WORK 165 

basic principle is so simple that the wonder is that it had to be 
discovered at all. With all the antecedents clearly in view, an 
attempt will be made to draw out, in a simple and natural way, 
the processes through which the Convention completed, with 
brilliant success, a work of adaptation beset with such obstacles 
as only an impending catastrophe could have removed. 

Emphasis has been given already to the fact that the pub- Hamilton's 
lication of Webster's entirely new plan of federal government Federal" 
on February 16, 1783, was followed, on April i, by Hamilton's Convention 
first move for a Federal Convention; and that on April 28, ty'webster 
Congress, "and so far as the records show never till then," • 
appointed a committee on the New York resolutions, then nine 
months old, in favor of such a Convention. When in June 
Washington's circular letter to the governors of the states 
expressed the belief "that there should be lodged somewhere 
a supreme power to regulate the general concerns of the con- 
federated republic, without which the Union can not be of long 
duration," the newspapers of the day took up the cry and 
demanded a revision "not by Congress, but by a Continental 
Convention, authorized for the purpose." ^ But before the 
echo of that appeal died away, Congress pointedly declined to 
take the initiative. When in September Adams and Franklin 
attempted to pave the way for a better union, a special com- 
mittee, of which Arthur Lee was a member, was appointed, 
which reported that "as the several states are sovereign and 
independent, and possess the power of acting as may to them 
seem best, Congress will not attempt to point out the path. Congress 
The mode for joint effort will suggest itself to the good sense ^^\^ f^^j 
of America." ^ The good sense of America declined, however, 
to take up the task in earnest until the spur of commercial and 
financial necessity became so sharp that it could be resisted no 
longer. 

The last stage of the good work really began on March Joint commis- 
28, 1785, when the joint commissioners of Virginia and Mary- ^^^'^JiJ'J ^"'' 
land ^ met at Mt. Vernon to arrange, under the auspices of Maryland, 

^ See Philadelphia, July 3, 1783; * Reports of committees on in- 

Maryland Gazette, July 11. In a let- creasing the powers of Congress, 95, 

ter to Dr. William Gordon, 8th July, MS. 

1783, MS., Washington did not hes- ' George Mason and Alexander 

itate to express his "wish to see Henderson of Virginia; Daniel of St. 

energy given to the federal constitu- Thomas Jenifer, Thomas Stout, and 

tion by a convention of the people." Samuel Chase of Maryland. 
Bancroft, i, 113. 



l66 ^ THE AMERICAN CONSTITUTION [Ch. 

Washington, the terms of a compact between the two states for 
the jurisdiction over the waters of the Chesapeake Bay and the 
rivers common to both states, coupled with a request to Penn- 
sylvania to grant the free use of the branches of the Ohio 
within its limits, so as to establish the connection between that 
river and the Potomac* 

The primary work of the commissioners being thus per- 
formed, they passed on to wider subjects of policy and recom- 
mended to the states in question uniformity of commercial 
regulations, uniformity of duties on imports, and uniformity 
of currency.^ At that moment the country was distracted by 
commercial conflicts which made it imperative that Congress 
should be armed with adequate power to regulate trade. 
Something had to be done to prevent the enactments of one 
state to the injury of the trade of the other, and to establish 
a system intelligible to foreigners trading with this country. 
Each state was attempting to regulate commerce on its own 
State tariffs account and in its own interest. In 1785 New York laid a 
of 1785. double duty on all goods whatever imported in British ships; 

and in the same year Pennsylvania passed the first of a series 
of tariff acts, designed to tax the whole community for the bene- 
fit of a few manufactures. In the midst of it all, Washington 
wrote: "If the states individually attempt to regulate com- 
merce, an abortion or a many-headed monster would be the 
issue. If we consider ourselves or wish to be considered by 
others a united people, why not adopt the measures which are 
characteristic of it, and support the honor and dignity of one? 
If we are afraid to trust one another under qualified powers, 
there is an end of the Union." ^ 

At that critical juncture it was that the ever vigilant and 
patriotic Madison hit upon an expedient. When on Decem- 
ber 5, Maryland gave her adhesion to the compact regulating 
the jurisdiction of the waters of Chesapeake Bay and the Po- 
tomac, her legislature sent a communication to that of Vir- 
ginia proposing that commissioners from all the states should 
be invited to meet and regulate the restrictions on commerce 

* Cf . Rives's Life of Madison, ii, either a united people or we are not 
58; Madison Papers, ii, 696. so. If the former, let us in all mat- 

* Washington to Stuart, 30th ters of national concern act as a na- 
Nov., 1785. When Washington was tion which has a national character 
invited to suggest, he said: "The to support." Sparks, ix, 145, 146. 
proposition is self-evident. We are 



VII.] THE FEDERAL CONVENTION AND ITS WORK 167 

for the whole. After Virginia had responded promptly to the 
action of Maryland, by enacting equally liberal legislation as 
to jurisdiction over the waters in question,^ Madison, having 
in view "a politico-commercial commission" for the continent, 
at once prepared a motion to the effect that commissioners 
from all the states should be invited to hold a meeting in order 
to discuss the best method of securing a uniform treatment 
of commercial questions. With consummate craft he put his 
motion into the hands of John Tyler, a zealot for the independ- 
ence of the states, who happened to agree with him on that 
question; and on January 21, 1786, it passed both branches 
of the Virginia legislature by a large majority.'^ 

The result was the invitation to the commissioners of all 
the states to meet in September of that year in the trade con- 
vention at Annapolis, from which proceeded, as heretofore Annapolis 
explained, the call for the more famous body that assembled qi^I^^^°^ 
at Philadelphia in May, 1787. The irresistible commercial and 
financial movement proceeding from the states which thus 
forced the meeting of the Federal Convention received tardy 
and reluctant recognition from Congress itself. After the 
Annapolis Convention had fixed the time and place, the Massa- 
chusetts delegation, led by King, prevented the recommend- 
ation of the measure which the deputations at Annapolis 
asked for. Not until Virginia, New Jersey, Pennsylvania, 
North Carolina, and Delaware had spoken affirmatively did 
King begin to see the error of his way. What really appealed 
to him was the fact that "events are hurrying us to a crisis. 
Prudent and sagacious men should be ready to seize the most 
favorable circumstances to establish a more perfect and vigor- 
ous government."^ Thus impelled, he offered, before the end of Federal 
February, 1787, a motion, accepted without opposition, which, q°jI|°''°'^ 
while carefully ignoring the act of the meeting at Annapolis, 
recommended as an original measure a convention to meet at 
the same time and place.^ The impending crisis that drove 
King to this action deepened with the increasing perplexities 
that seemed to culminate just at that moment. Alarm grew its meeting 
into consternation as Shays's Rebellion in Massachusetts, the forced by 

events 

riots in Vermont and New Hampshire, the "Know Ye" meas- 

* Hening, xii, 50, 55. * Journals, iv, 723; Madison 

' Madison Papers, ii, 694-695. Papers, ii, 587, 619, 620. 

» Austin's Gerry, ii, 3, 4, 7, and 8. 



J 



i68 



Imperious 
necessities 
of commerce 
and finance. 



The jealous 
spirit of local 
self-interest. 



THE AMERICAN CONSTITUTION 



[Ch. 



ures of Rhode Island, the paper-money craze in so many 
states, the quarrel with Spain, and the imminent danger of 
separation between North and South consequent thereon, 
seemed to struggle together in the effort to produce anarchy. 
And, last and most of all, less than three months before the 
time fixed for the meeting at Philadelphia the State of New 
York, the one financial prop of the Confederation, after an 
impassioned appeal by Hamilton in the legislature, on Febru- 
ary 15, 1787, so clogged her assent to the amendment endowing 
Congress with the power to levy customs duties and to appoint 
the collectors as to defeat it. Thus Congress was decisively 
informed by New York, as it had long ago been informed by 
Rhode Island, that it would never be armed with any effectual 
means for raising revenue. In the midst of the deepening 
gloom, and under the pressure of a common danger, all the 
states took part in the proceedings at Philadelphia except self- 
centred Rhode Island, which failed to send delegates. 
, No mind accustomed to follow the swelUng streams of 
causation as they flow through the forest of interdependent 
historical facts should find it difficult to perceive that it was 
the imperious necessities of commerce and finance that drove 
the states together in the famous assembly that completed the 
second Constitution of the United States. How imperious such 
necessities were can only be understood in the presence of the 
opposing forces they were obliged to overcome. The people 
that dwelt in the straggling and long-drawn-out series of repub- 
lics then fringing our Atlantic seaboard, so far from being 
inspired by a common sentiment of union, the after-growth 
of a later time, were filled with an intensely provincial spirit to 
which local self-interest appealed in many forms. It was that 
jealous spirit of local self-interest that refused to the last to 
arm the Congress of the Confederation, even to a limited 
extent, with the power to tax; it was that spirit that refused to 
the last so to arm Congress with the power to regulate trade as 
to enable it to crush out the interstate tariff wars then paralyz- 
ing commerce, foreign and domestic. In the presence of such 
conditions it is not strange that the British Order in Council 
of the 2d of July, 1783, should have been "issued in full con- 
fidence that the United States cannot agree to act as one na- 
tion";^ it is not strange that the British Ambassador at Paris, 
* See letter of John Adams to Congress, Dip. Cor., vii, 81, 88, 100. 



Tucker's 
statement. 



VII.] THE FEDERAL CONVENTION AND ITS WORK . 169 

when he was notified by the American Commissioners in 1784,^ \ 
that they had full powers to negotiate a commercial treaty with \ 
Great Britain, should have replied, after consulting with Eng- 
lish merchants trading with North America, that "the appar- 
ent determination of the respective states to regulate their 
own separate interests renders it absolutely necessary, toward 
forming a permanent system of commerce, that my court 
should be informed how far the commissioners can be duly 
authorized to enter into any engagements with Great Britain, 
which it may not be in the power of any one of the states to 
render totally fruitless and ineffectual." Josiah Tucker, Dean 
of Gloucester, reputed to be a sagacious man, simply expressed 
the general view of European statesmen when he said: "As to Josiah 
the future grandeur of America, and its being a rising empire 
under one head, whether republican or monarchical, it is one 
of the idlest and most visionary notions that ever was con- 
ceived even by writers of romance." How could a contrary 
conclusion be reached by those who knew that the long and 
discreditable history of federalism as a system of government 
had been carried to the verge of the grotesque by the first and 
pending American experiment? 

In the midst of the midnight there was but a single star, 
and that was visible only to the eyes of the elect. To those 
watchers of the skies it came like a new planet when, on Feb- 
ruary 16, 1783, the great one laid at the doors of the Con- 
gress an entirely novel yet complete solution of the mighty 
problem by which they were mastered and overcome. No 
invention of the human mind was ever more distinctly re- Isolation sur- 
moved from all rivalry by the isolation surrounding its birth. ^T^^f 
No sane or serious person will contend that it had been pre- invention, 
ceded by any prototype whatever; and not until about four 
years after its appearance was any attempt made to reproduce 
it in any form. While it thus stood forth in the solitude of its 
own originality, it was seized upon by three youthful states- 
men, Madison, Hamilton, and Charles Pinckney, who, after 
restating it in the form of more or less complete systems of gov- 
ernment, made it the basis of the proceedings of the Federal 
Convention of 1787. Is it a matter of wonder that the greatest 

* The American Commissioners British Ambassador at Paris was the 
for negotiating treaties were John Duke of Dorset. 
Adams, Franklin, and Jeflferson; the 



\/' 



170 



THE AMERICAN CONSTITUTION 



[Ch. 



Adam Smith 
aad his work. 



Alternatives 
presented to 
Convention. 



Summary. 



financier and economist of the age should have solved the grav- 
est financial and commercial problem presented by that age? 
Is it a matter of wonder that a Convention forced together by 
the pressure of an impending catastrophe brought on by acute 
commercial and financial conditions should have seized upon 
the only remedy ever offered as an alleviation of them? In the 
year in which the Declaration of Independence was made, 
Adam Smith discredited the economic policy of the past and 
promoted the overthrow of worn-out institutions by the pub- 
lication of the "Wealth of Nations"; "perhaps," as Mackin- 
tosh has declared, " the only book which produced an immediate, 
general, and irrevocable change in some of the most import- 
ant parts of the legislation of all civilized states." Seven years 
later Pelatiah Webster practically abolished the ancient type 
of a federal league resting on the quota system, as it had existed 
for over two thousand years, and established in its stead the new 
type of a composite state which has become universal. It was 
a time of transition, of change from the past to the present, 
during which such achievements were possible. So complete, so 
finished was Webster's performance that the work of the Con- 
vention in its larger aspect was reduced to a choice between 
two alternatives. It had either to perpetuate the old and dis- 
credited system by adopting the plan of an amended Confed- 
eration, as presented by Paterson ; or it had to adopt the path- 
breaking invention, "the wholly novel theory" presented to it 
with variations in detail by Madison, Hamilton, and Pinckney. 
In the mighty conflict of forces the old provincial spirit, strong as 
it was, was crushed, only by the threat of the deluge. After the 
Paterson plan had been swept away, the only question that 
remained was as to the form in which the great invention, as 
embodied in the so-called plans of Madison, Hamilton, and 
Pinckney, should be transformed into a working system of gov- 
ernment. With that clue to the labyrinth it will be compar- 
atively easy to follow the details of the proceedings of the 
Convention subsequent to the introduction of the four plans, 
as the records now available are, with a few exceptions, fairly 
complete and accurate. 

An earnest effort has now been made to demonstrate that 
an irresistible popular movement, driven on by the pressure of 
commercial and financial necessity, finally forced the Contin- 
ental Congress to acquiesce at a specially critical moment in 



VIM THE FEDERAL CONVENTION AND ITS WORK 171 

the calling of a Federal Convention; that the progressive states- 
men of the time went to that Convention, under the leadership 
of Washington, resolved to break away from the past by adopt- 
ing an entirely new plan of federal government upon which 
they had been reflecting for more than four years ; that Madi- 
son, Hamilton, and Pinckney, who were necessarily familiar 
with that plan from the day it was published under their very 
eyes, had, after prolonged study, formulated it in more or less 
elaborate systems of government of which particular descrip- 
tions have been given already. Only in the light of these con- 
clusions, proven hardly more distinctly by the documentary 
evidence than by the elementary rules of common sense, is it 
possible to account for the fact that "the most wonderful work 
ever struck off at a given time by the brain and purpose of 
man" was entirely performed, from start to finish, within the 
narrow limits of eighty-six working days. The table here Ccnvention 
appended will remove all controversy as to that point. Pur- Jg^ty^gj^^Jays. 
suant to call, the Convention met May 14, 1787. There was no 
quorum present until Friday, May 25. The Convention then 
sat as follows : — 



= 5 days 





Su. 


M. 


TUE. 


W. 


Th. 


F. 


Sat 


May 












25 








28 


29 


30 


31 






June 












I 


2 






4 


5 


6 


7 


8 


9 






II 


12 


13 


14* 


15 


16 






18 


19 


20 


21 


22 


23 






25 


26 


27 


28 


29 


30 


July 




2 






5 


6 


7 






9 


10 


II 


12 


13 


14 






16 


17 


18 


19 


20 


21 






23 


24 


25 


26 






August 




6 


7 


8 


9 


10 


II 






13 


14 


15 


16 


17 


18 






20 


21 


22 


23 


24 


25 






27 


28 


29 


30 


31 




September 














I 






3 


4 


5 


6 


7 


8 






10 


n* 


12 


13 


14 


IS 






17 












Deduct 14* 


and 


II* 


Met and 


adjourned 





= 26 days 



= 20 days 



= 23 days 



= 14 days 

88 days 

2 days 



Worked 86 days 

This table was prepared by my friend, Mr. Justice Shackelford Miller of 
the Kentucky Court of Appeals, a master of the history of the Convention. 



172 



THE AMERICAN CONSTITUTION 



ICh. 



Absurdity of 

inspiration 

theory. 



The four new 
principles. 



Relation 
between 
architect 
and master 
builders. ' 



Even if the explicit and voluminous documentary evidence 
did not establish the contrary, nothing could be more grotesque, 
more chimerical, than the assumption that the assembly met 
under the spell of some kind of inspiration that enabled it not 
only to make, as a corporate act, an epoch-making invention 
in political science, but to elaborate it as a working system of 
government within the span of eighty-six working days. The 
moment the inspiration theory is set aside, the fact appears that 
the three plans out of which the finished product grew had been 
carefully elaborated some time beforehand by three minds, 
that took from the common source open to all the four basic 
principles first announced on February i6, 1783. Those basic 
principles are (i) 3. federal government with the independent 
power of taxation; (2) the division of the federal head into three 
departments, legislative, executive, and judicial; (3) the divis- 
ion of the federal legislature into two chambers ; (4) a federal 
government with delegated powers operating directly on the 
citizen, the residuum of power remaining in the states. It is no 
exaggeration to say that Webster's creation based on those 
four novel principles was as different from any preceding fed- 
eral system as a modern mogul engine is from an ancient stage- 
coach. When the documents containing the plans as drafted by 
Madison, Hamilton, and Pinckney are placed in juxtaposition 
with the original paper of February 16, 1783,^ a mere compari- 
son settles the fact that the great invention, which is the basis 
of all of them, was drawn by each from the common source. 
And yet after that claim has been fully admitted, as it will be 
by every honest and reasonable mind, the fact remains that 
the master builders, who transformed under the most difficult 
circumstances possible the dream of the great architect into 
a working system of government, achieved a result as remark- 
able as the invention itself. As time goes on, it becomes more 
and more necessary that every patriotic American, no matter 
whether he is a student of the Science of Politics or not, should 
study the history of the eighty-six days so minutely as to 
enable him to view, as a connected whole, the most thrilling 
and important political drama ever enacted on the stage of the 
world. 
Tacitus tells us that the Teutonic warriors made it a habit 
^ See Appendices xi, xii, xiii, and xiv. 



VII.] THE FEDERAL CONVENTION AND ITS WORK 1 73 

never to meet in the state assembly at the time appointed lest Convention 
p unctuali ty should look like obedience. True to the ancient f„^ w; ™^* ^ 
tradition the members of the Federal Convention who were on May 14. 
summoned for the 14th of May did not gather at Philadelphia in 
sufficient numbers to do business until the 25th. At the hour 
appointed for opening the Convention on the 14th, Virginia 
and Pennsylvania, the only states sufficiently represented, 
appeared at the State House, and, with others as they arrived, 
adjourned from day to day. On the 17th, South Carolina 
appeared on the floor; on the i8th. New York; on the 21st, 
Delaware; on the 22d, North Carolina; and finally on the 25th, 
New Jersey, the last of the seven states necessary to form 
a house. ^ As guide, councilor, and friend of them all came 
George Washington, who was met at Chester by public honors 
that followed him to Philadelphia, where he was escorted by 
the city Hght horse amid the chiming of bells that announced the 
beginning of a new national life. He had come with a firm 
resolve to break with the past. In a then recent letter to Washington's 
Madison he had said, "My wish is that the Convention may ^^^^ 
adopt no temporizing expedients, but probe the defects of the 
Constitution to the bottom and provide a radical cure, whether 
agreed to or not. A conduct of this kind will stamp wisdom and 
dignity on their proceedings, and hold up a light which sooner 
or later will have its influence." ^ To that he added one day, 
while standing in the midst of those who were waiting for a 
quorum: "It is too probable that no plan we propose will be 
adopted. Perhaps another dreadful conflict is to be sustained. 
If, to please the people, we offer what we ourselves disap- 
prove, how can we afterward defend our work? Let us raise 
a standard to which the wise and honest can repair ; the event 
is in the hand of God." ^ Under such inspiration the Virginia 
delegation, completed by the arrival of George Mason, pre- 
pared during the interval to take the lead by conferring "to- 
gether by themselves two or three hours every day in order to 
form a proper correspondence of sentiments." ^ On Friday the present on 
25th, the following deputies appeared: From Massachusetts, May 25. 

^ Madison Papers, ii, 721-723. ' Gouverneur Morris's oration 

On the 28th the representation was upon the death of Washington, Dec. 

increased to nine by the arrival of 31, I799» 20-21. 

Maryland and Massachusetts. * George Mason to his son, Phila- 

* March 31, 1787. Sparks, ix, 250. delphia.May 20, MS. Bancroft, ii, 5. 



174 



THE AMERICAN CONSTITUTION 



[Ch. 



Committee 
to prepare 
standing rules. 



Virginia plan 
presented 
May 29. 



Madison's 
first sketch 
on paper. 



Rufus King; from New York, Robert Yates and Alexander 
Hamilton; from New Jersey, David Brearley, William Church- 
ill Houston, and William Paterson; from Pennsylvania, 
Robert Morris, Thomas Fitzsimons, James Wilson, and 
Gouverneur Morris; from Delaware, George Read, Richard 
Bassett, and Jacob Broom ; from Virginia, George Washington, 
Edmund Randolph, John Blair, James Madison, George 
Mason, George Wythe, and James McClurg; from North Caro- 
lina, Alexander Martin, William Richardson Davie, Richard 
Dobbs Spaight, and Hugh Williamson ; from South Carolina, 
John Rutledge, Charles Cotesworth Pinckney, Charles Pinck- 
ney, and Pierce Butler; from Georgia, William Few. After the 
unanimous election of Washington as President, and William 
Jackson as Secretary, "on reading the credentials of the depu- 
ties, it was noticed that those from Delaware were prohibited 
from changing the Article of the Confederation establishing an 
equality of votes among the states." ^ The appointment of a 
committee to prepare standing rules and orders closed the busi- 
ness of the day; while the next was devoted to the adoption of 
the rules submitted by it, the first of which provided: "A 
House to do business shall consist of the deputies of not less 
than seven states; and all questions shall be decided by the 
greater number of these which shall be fully represented. But 
a less number than seven may adjourn from day to day." It 
was distinctly provided that no registry was to be made of the 
votes of individuals, who were thus secured greater freedom of 
action. 

The moment its organization was thus completed, the Con- 
vention, on May 29, plunged without the slightest prelimin- 
ary into the great business its dominating members, with 
Washington at their head, had come to perform — the business 
of making an entirely new Constitution on the basis of the 
invention announced to the world by Pelatiah Webster, Feb- 
ruary 16, 1783. After a notable speech, Governor Randolph 
presented the fifteen resolutions embodying what is generally 
known as the Virginia plan, of which Madison was undoubt- 
edly the real author. That statement should, however, be 
accompanied by Madison's carefully drawn declaration that 
"as a sketch on paper, the earliest, perhaps, of a Constitu- 
* Madison Papers, ii, 723. 



VII.l THE FEDERAL CONVENTION AND ITS WORK 1 75 

tional Government for the Union (organized into the regular 
departments, with the physical means operating on individ- 
uals) to be sanctioned by the people of the states, acting in their 
original and sovereign character, was contained in the letters 
of James Madison to Thomas Jefferson of the nineteenth of 
March ; to Governor Randolph of the eighth of April ; and to 
General Washington of the sixteenth of April, 1787, for which 
see their respective dates." As the sketch or plan contained in 
those letters is the only one Madison ever claimed as his own, 
justice to him requires that they should be printed in the 
Appendix as a supplement to or commentary upon the resolu- 
tions offered by Randolph, which were, no doubt, drafted by 
Madison as a formal summary of the larger statement which 
the letters contain.^ Randolph's remark that "as the Con- Randolph's 
vention had originated from Virginia, and his colleagues sup- statement, 
posed that some proposition was expected from them, they had 
imposed this task on him," ^ is a substantial repudiation of any 
claim upon his part of personal authorship. It is perfectly plain 
that Madison's great modesty, which often expressed itself 
in blushes,^ coupled with his comparative youth and lack, at 
that time, of commanding prestige, made it as natural as it was 
expedient for him to treat as the product of his delegation 
resolutions drafted in the main by his own hand. And yet 
after every possible credit has been given to Madison for the 
resolutions and letters, considered as a connected whole, how 
can any critical mind declare with Bancroft that "the Vir- 
ginia members prepared a finished plan"?^ As stated here- 
tofore, only Pinckney and Hamilton formulated, before the OnlyPinck- 
Convention met, finished schemes of a new type of federal gov- "^^ ^°^ ?^*™' 

1 T 7. • • T. 1 . 1 f , , 1 • . '^t°° drafted 

ernment; the Virginia Resolutions only set forth the basic prm- finished plans. 
ciples upon which such a new scheme might be constructed ; in 
the words of Judge Nott, they only "brought before the Con- 
vention questions for abstract discussion and bases on which 
to rest principles of government."^ And yet, general and 
abstract as the Virginia Resolutions were, they embodied com- 
pletely the great invention. They outlined a composite state 

* These documents are all printed * The Critical Period, p. 227. 

consecutively in Appendix xii. * Hist of Const., ii, v. 

2 From the opening of his speech * See above, pp. 33, 34. 

presenting the Virginia Resolutions. 
Madison Papers, ii, 729. 



\y 



176 



THE AMERICAN CONSTITUTION 



[Ch. 



Pinckney's 
plan or "sys- 
tem" pre- 
sented May 29. 



Copy of lost 
Pinckney plan 
furnished in 
1818. 



acting directly upon the citizen, with the federal head divided 
into three departments, legislative, executive, and judicial. 
The Congress, with full taxing power, was to be divided into 
two chambers instead of one, while the new government as a 
whole was to be armed with the right to maintain the suprem- 
acy of federal law. So soon as the Virginia Resolutions were 
referred to "a Committee of the Whole House, to consider the 
state of the American Union," Charles Pinckney presented his 
plan or system. The event is thus recorded in the minutes of 
Yates: " Mr. C. Pinckney, a member from South Carolina, then 
added that he had reduced his ideas of a new government to 
a system, which he then read." ^ According to Madison it was 
then "ordered, that the said draft [of the Pinckney plan] be 
referred to the Committee of the Whole to consider the state of 
the American Union. Adjourned." Thus it appears that be- 
fore adjournment on the first day upon which the Convention 
really proceeded to business, Madison and Pinckney submitted, 
the one in the form of general principles, the other in a far more 
concrete and systematic form, the entirely new plan of federal 
government now embodied in the existing Constitution of the 
United States. 

The reasons have been stated already for the conclusion that 
the copy of the lost Pinckney plan, furnished by its author to 
the Secretary of State in 1818 and published by him in the fol- 
lowing year, contains certainly the substance of his original 
draft.2 When that copy is placed in juxtaposition with the 
Virginia Resolutions, the latter, considered as a "finished plan " 
of government, are poor indeed. In the light of that fact 
Madison's criticism of the copy furnished by Pinckney must 
be judged. That criticism opens with the admission that "the 
length of the document laid before the Convention, and other cir- 
cumstances" prevented the taking of a copy of the Pinckney 
plan at the time it was offered; and that admission, as to 
length, is corroborated by Yates, who says that Pinckney 
"added that he had reduced his ideas of a new government to 
a 53'5/ew, which he then read." Thus the fact is fixed that what 
Pinckney actually offered was not a mere abstract but a "sys- 
tem" of government certainly worked out in some detail. The 

* Madison Papers, ii, 746. See also p. 735. 

* See above, p. 33. 



VII.] THE FEDERAL CONVENTION AND ITS WORK 1 77 

gravamen of Madison's criticism is this: "On comparing the Gravamen of 

Madison's 
criticism. 



paper with the Constitution in its final form, or in some of its ^^'^^^^ ^ 



stages, and with the propositions and speeches of Mr. Pinckney 
in the Convention, it was apparent that considerable error had 
crept into the paper, occasioned possibly by the loss of the docu- 
ment laid before the Convention (neither that nor the Reso- 
lution offered by Mr. Paterson, being among the preserved 
papers), and by a consequent resort for a copy to the rough 
draft, in which erasures and interlineations, following what 
passed in the Convention, might be confounded, in part at 
least, with the original text, and, after a lapse of more than 
thirty years, confounded also in the memory of the author." ^ 
Madison's assumption, not entirely unreasonable when made, 
"that considerable error had crept into the paper," has been so 
successfully refuted by the work recently done by Professor 
Jameson and Judge Nott,^ that but little, if any, weight can Jameson 
now be attached to it. In remembering that the essence of the ^futation^ 
imputation against Pinckney was embodied in the idea that he 
had pieced out his original draft by borrowing matter from the 
Constitution as completed, we should not forget that no one 
then realized what a reservoir he had to draw from In the great 
document of February 16, 1783, far more voluminous than the 
Constitution Itself. The fact Is that Pinckney surpassed both 
Madison and Hamilton In the faithfulness with which he 
restated to the Convention the essence of the invention Web- 
ster had made. His version was the version par excellence, free Pinckney's 
as it was, on the one hand, from the timid pretense of the Vir- 
ginia plan that only a revision of the Articles of Confederation 
was Intended, and, on the other, from the extreme centralizing 
tendencies of Hamilton's plan, for which the country was not 
prepared. It must, however, be said in justice to Madison, 
when we gather his real motives from his letters, that he was 
just as resolute as Washington in the wish "that the Conven- 
tion may adopt no temporizing expedients, but probe the 
defects of the Constitution to the bottom." In his letter to 
Randolph of April 8, 1787, he said, "In truth, my ideas of a Madison's 
reform strike so deeply at the old Confederation, and lead to |.g|o^ 
such a systematic change, that they scarcely admit of the 
expedient. . . . Let the National Government be armed with a 
* Madison Papers, iii, Appendix no. 2. * See above, p. 34. 



the version 
par excdlence. 



178 



THE AMERICAN CONSTITUTION 



[Ch. 



Provincial 
spirit in 
Virginia. 



The great 
invention not 
gradually 
evolved in 
Convention. 



Its work "cut 
and dried" 
beforehand. 



positive and complete authority in all cases where uniform meas- 
ures are necessary, as in trade, etc." The difficulty was that 
Washington and Madison had behind them at home vigilant 
and implacable political enemies who were eager to destroy 
their work, however worthy it might be. Patrick Henry, 
Thomas Nelson, and Richard Henry Lee had refused even to 
be delegates to the Convention; and, at the close, even a man 
like George Mason was ready to say: "As the Constitution now 
stands, he could neither give it his support nor vote in Virginia; 
and he could not sign here what he could not support there." ^ 
To the narrowness, the selfishness, the short-sightedness of the 
provincial spirit as embodied in such men, Madison, whose 
patriotism was ever working through diplomacy, yielded mat- 
ters of form while clinging to the substance. He was willing 
to have it appear that they were only reforming the Articles of 
Confederation if, under that veil, they could make an entirely 
new Constitution. 

The fact that during the first hours of the first day upon 
which the Convention did any real work the entirely new plan 
of federal government now embodied in the existing Constitu- 
tion was submitted in different forms in two documents that 
occupy sixteen printed pages of the "Madison Papers" should 
convince every one that the theory that the great invention 
was gradually evolved as the proceedings went on is the most 
foundationless of all chimeras. May 29 was devoted exclus- 
ively to the reception of the two plans drafted by Madison 
and Pinckney, in which not only every new basic principle 
that enters into the existing Constitution was carefully defined, 
but also the greater part of the details as they were finally 
worked out by the Committee of Detail to which the Pinckney 
plan was referred on July 26. Despite the long-standing popu- 
lar misconception to the contrary, no deliberative body ever 
had its work so cut out and arranged beforehand as the Fed- 
eral Convention of 1787. It may be said without the slightest 
exaggeration that the creative work that has made it immortal 
was finished before it ever met. From May 29 to the close, the 
single question before the secret conclave was as to the form 
in which the great invention of February 16, 1783, should be 
adapted to then existing conditions as a working system of 
* Madison Papers, iii, 1594. 



VII.] THE FEDERAL CONVENTION AND ITS WORK 1 79 

government. The Committee of the Whole, to which both the 
Pinckney plan and the Virginia Resolutions had been referred, 
opened the battle on May 30, with the election of Gorham as Discussion in 
chairman, and continued it until June 13, when it rose and themolef 
reported to the House the results of its deliberations in the began May 30. 
form of nineteen resolutions. It is certainly notable that as a 
prelude to the debate, the basic suggestion Webster had been 
the first to make was adopted in this form: "that a national 
government ought to be established, consisting of a supreme 
legislative, executive, and judiciary," Pierce Butler, recogniz- 
ing the wisdom of applying to a federal system such a division 
first popularized by Montesquieu in connection with single Division of tl^e 
states, said "that he had opposed the grant of powers to Con- ^ ^^^ ^* " 
gress heretofore, because the whole power was vested in one 
body. The proposed distribution of the powers with different 
bodies changed the case, and would induce him to go great 
lengths." Gouverneur Morris "explained the distinction 
between a federal and a national, supreme government; the 
former being a mere compact resting on the good faith of the 
parties ; the latter having a complete and compulsive operation. 
He contended that in all communities there must be one 
supreme power and one only," Roger Sherman, who took his 
seat on that day, while admitting that larger faculties must be 
bestowed on the new creation, was not willing to do more at 
that time than vest in it the power to raise its own revenue.^ 

Webster's basic contention as to the division into two houses Division of 
of a federal legislature was accepted on May 31, in this form: f^°°^^ss into 
"That the national legislature ought to consist of two 
branches," — a conclusion "agreed to without debate, or dis- 
sent, except that of Pennsylvania, given probably from complai- 
sance to Dr. Franklin, who was understood to be partial to a 
single house of legislation." ^ Beyond that point Webster had 
not gone; upon the menacing and difficult questions involved 
in the organization of the two houses he had shed no light ; the 
honor of solving them belongs to the Convention alone. That 
Pandora's box, involving, as it did, not only the question of 
slavery but the jealousy and distrust existing between the 
smaller and larger states, had been opened on May 30, by 
Hamilton, who moved "that the rights of suffrage in the 
1 Madison Papers, ii, 746-747. ' Madison Papers, ii, 753. 



i8o 



THE AMERICAN CONSTITUTION 



[Ch. 



Suffrage and 
representation. 



Scope of 

legislative 

power. 



Use of force 
against a 
state. It 



Organization 
of the execu- 
tive power. 



national legislature ought to be proportioned to the number 
of free inhabitants." In order to cut off irritating debate the 
motion was postponed ; and Madison moved in more general 
terms "that the equality of suffrage established by the Articles 
of Confederation ought not to prevail in the national legis- 
lature ; and that an equitable ratio of representation ought to 
be substituted." On the next day, after a failure to reach any 
definite result as to that part of the plan, "the cases in which 
the national legislature ought to legislate, was next taken into 
discussion. On the question whether each branch should 
originate laws, there was an unanimous affirmative, without 
debate. On the question for transferring all the legislative 
powers of the existing Congress to this assembly, there was 
also an unanimous affirmative, without debate." Almost 
unanimous approval was also given to "the proposition for 
giving legislative power in all cases to which the state legisla- 
tures were individually incompetent." Then it was that Madi- 
son said "that he had brought with him into the Convention a 
strong bias in favor of an enumeration and definition of the 
powers necessary to be exercised by the national legislature; 
but also had brought doubts concerning its practicability. His 
wishes remained unaltered; but his doubts had become 
stronger." ^ " The last clause of the Sixth Resolution, author- 
izing an exertion of the force of the whole against a delinquent 
state" came next into consideration. "The use of force 
against a state," said Madison, "would look more like a de- 
claration of war than an infliction of punishment; and would 
probably be considered by the party attacked a dissolution of 
all previous compacts by which it might be bound." * 

With the field thus cleared, the Convention proceeded on 
June I to consider the organization of the executive power. 
Webster's proposal was that "the supreme executive author- 
ity" should be vested in a Council of State, "one of which to be 
appointed President by Congress." The Pinckney plan pro- 
vided that "the executive power of the United States shall be 
vested in a President of the United States of America, which 
shall be his style, and his title shall be His Excellency. He 
shall be elected for years; and shall be reeligible." The 

Virginia plan — avoiding the question whether the national 
» Madison Papers, ii, 750, 751, 759, 760. « Ibid. 761. 



VII.] THE FEDERAL CONVENTION AND ITS WORK l8l 

Executive should be one or many — provided "that a na- 
tional Executive shall be instituted ; to be chosen by the na- 
tional legislature, for the term of ; to receive punc- 
tually, at stated times, a fixed compensation for services ren- 
dered, in which no increase nor diminution shall be made, so as 
to affect the magistracy existing at the time of increase or 
diminution; and to be ineligible a second time." In supporting 
his proposal Pinckney said he "was for a vigorous executive, 
but was afraid the executive powers of the existing Congress 
might extend to peace and war, etc. ; which would render the 
Executive a monarchy of the worst kind, to wit, an elective 
one." ^ Mr. Wilson moved that the Executive consist of a To consist of 
single person. Mr. C. Pinckney seconded the motion, so as to * ""^ ** person. 
read "that a national Executive, to consist of a single person, 
be instituted." Rutledge then supported Pinckney and Wilson, 
saying "he was for vesting the executive power in a single 
person, though he was not for giving him the power of war or 
peace. A single man would feel the greatest responsibility and 
administer the public affairs best." Gerry, supporting the 
Webster idea, said he "favored the policy of annexing a council 
to the Executive, in order to give weight and inspire confidence. ' * 
Mr. Randolph "strenuously opposed an unity in the executive 
magistracy. He regarded it as the foetus of monarchy." To 
that Wilson retorted "that unity in the Executive, instead of 
being the foetus of monarchy, would be the best safeguard 
against tyranny. He repeated, that he was not governed by the 
British model, which was inapplicable to the situation of this 
country; the extent of which was so great, and the manners so 
republican, that nothing but a great confederated republic 
would do for it." At that point, in the hope of spreading oil 
on the waters, Madison induced the Convention, before finally 
choosing between a single or plural executive, to determine 
that it should be clothed "with power to carry into effect the Powers of the 
national laws, to appoint to offices in cases not otherwise pro- Executive, 
vided for." Returning then to the original question, Wilson 
said, "Chimerical as it may appear in theory, I am for an elec- 
tion by the people. Experience in New York and Massachu- 
setts shows that an election of the first magistrate by the people 
at large is both a convenient and a successful mode." Sher- 
* Madison Papers, ii, 762; Elliot, 140. 



1 82 



V 



To be chosen 
by electors. 



The veto 
power. 



Organization 
of judiciary. 



THE AMERICAN CONSTITUTION 



[Ch. 



man replied: "I am for its appointment by the national legis- 
lature, and for making it absolutely dependent on that body 
whose will it is to execute. An independence of the Executive 
of the supreme legislature is the very essence of tyranny." 
After debate as to the length of the term, it was settled by 
a close vote that the Executive should hold for a term of seven 
years, and should not be twice eligible.^ But the problem of 
problems still remained unsolved. How should the Executive 
be chosen? The far-sighted Wilson who had suggested an elec- 
tion by the people — " chimerical as it may appear in theory " — 
then proposed borrowing from the constitution of Maryland 
that electors chosen in districts of the several states should 
meet and elect the Executive by ballot, but not from their own 
body. As the time was not yet ripe for the development of that 
idea, the Convention determined for the moment to vest the 
choice of the Executive in the national legislature. After a 
motion by Dickinson for making the Executive removable by 
the national legislature at the request of the majority of the 
state legislatures had been decisively defeated, it was agreed 
that he should "be removable on impeachment and conviction 
of malpractice or neglect of duty." When a proposal was made 
to surround the Executive with a council of revision, composed 
of the Executive and a certain number of the judiciary, "Mr. 
Gerry doubts whether the judiciary ought to form a part of 
it, as they will have a sufficient check against encroachments 
on their own department by their exposition of the laws^ which 
involved a power of deciding" 'oir~ThTEii^---eonstitimonality." 
Upon his motion, after the example of his own state, the veto 
power was confided to the Executive alone, subject to be over- 
ruled by two thirds of each branch.^ 

Considering that the Convention was composed chiefly of 
lawyers, it is remarkable how little conflict took place over the 
organization of the federal judiciary. We have seen heretofore 
that Webster not only clearly defined the jurisdiction of the 
Supreme Court, original and appellate, but also outlined the 
itinerant judicature, with "judges of law and chancery." 

The Virginia plan proposed "that a national judiciary be 
established ; to consist of one or more supreme tribunals, and 



* Madissn Papers, ii, 762-767; 
Elliot, 143. 



* Madison Papers, ii, 768-783; 
Elliot, 149-150. 



VII.l THE FEDERAL CONVENTION AND ITS WORK 183 

of inferior tribunals, to be chosen by the national legislature; 
to hold their offices during good behavior, and to receive punc- 
tually, at stated times, fixed compensation for their services, in 
which no increase or diminution shall be made, so as to affect 
the persons actually in office at the time of such increase or 
diminution." 

The Pinckney plan proposed that "the judges of the courts 
shall hold their offices during good behavior; and receive 
a compensation, which shall not be increased or diminished 
during their continuance in office. One of these courts shall 
be termed the Supreme Court; whose jurisdiction shall extend 
to all cases arising under the laws of the United States, or 
affecting ambassadors, or other public ministers and consuls; 
to the trial of impeachment of officers of the United States ; to 
all cases of admiralty and maritime jurisdiction"; — with the 
line clearly drawn between such jurisdiction as was to be orig- 
inal and such as was to be appellate. 

In the light of these suggestions the Convention resolved on 
June 4, "that a national judiciary be established, to consist of 
one supreme tribunal, and of one or more inferior tribunals." One supreme 
On the next day when a jealous opposition to the transfer of ^bunais"°' 
business from state to federal courts developed, a motion to 
dispense with the inferior federal tribunals prevailed, — despite 
Madison's contention "that unless inferior tribunals were 
dispersed throughout the Republic with final jurisdiction in 
many cases, appeals would be multiplied to a most oppressive 
degree. ... A Government without a proper executive and 
judiciary, would be the mere trunk of a body, without arms 
or legs to act or move." Wilson and Madison then plucked 
victory from defeat by having the motion to strike out "in- 
ferior tribunals" modified by the provision "that the national 
legislature be empowered to institute inferior tribunals." 

Thus the distinction was drawn between their actual estab- 
lishment and the right to establish them in the future. All Tenure and 
agreed that the judges should hold office during good behav- ^^^^^ ^ 
ior and that their compensation should be safe from diminution 
during the period of service. There was, however, a sharp dif- 
ference of opinion as to the method of their selection. No favor 
was given to the Virginia plan of intrusting their appointment 
to the legislature. When that came up for discussion, Wilson 



i84 



L 



Organization 
ofthe legis- 
lature. 



Combination 
of state and 
national gov- 
ernments. 



THE AMERICAN CONSTITUTION 



[Ch. 



proposed to vest it in the Executive, and Madison in the 
Senate. For the moment no action was taken. ^ 

On June 6, Charles Pinckney reopened the question of 
questions by moving "that the first branch of the national 
legislature be elected by the state legislatures, and not by the 
people." Sherman said : " If it were in view to abolish the state 
governments, the elections ought to be by the people. If the 
state governments are to be continued, it is necessary, in order 
to preserve harmony between the national and state govern- 
ments, that the elections to the former should be made by the 
latter." Dickinson "considered it essential, that one branch of 
the legislature should be drawn immediately from the people; 
and expedient, that the other should be chosen by the legisla- 
tures of the states. This combination of the state governments 
with the national government was as politic as it was unavoid- 
able." On the next day he moved "that the members of the 
second branch [now called the Senate] ought to be chosen by 
the individual legislatures," — an implication that each of the 
smaller states should elect at least one Senator. Against that 
claim of equality in one branch of the national legislature 
protests came in many and emphatic forms from the larger 
states. Wilson said "he wished the Senate to be elected by the 
people, as well as the other branch; the people might be di- 
vided into proper districts for the purpose; and he moved to 
postpone the motion of Mr. Dickinson, in order to take up one 
of that import." Madison said that "if the motion [of Mr. 
Dickinson] should be agreed to, we must depart from the doc- 
trine of proportional representation, or admit into the Senate 
a very large number of members. The first is inadmissible, 
being evidently unjust. The second is inexpedient." Cotes- 
worth Pinckney said "if each of the small states should be al- 
lowed one senator, there will be eighty at least." After Mason 
had closed the debate with the declaration that "the state 
legislatures ought to have some means of defending themselves 
against encroachments of the national government," the vote 
was taken; and with one voice, the selection of the second 



^ Madison Papers, ii, 791-855; 
Elliot, 155, 156, 188. It was agreed 
"that the jurisdiction of the national 
judiciary shall extend to cases which 
respect the collection of the national 



revenue, impeachments of any na- 
tional officers, and questions which 
involve the national peace and 
harmony." 



VII.l THE FEDERAL CONVENTION AND ITS WORK 1 85 

branch or Senate was given to the state legislatures.^ In that 
way the states, as such, were recognized. But on the 9th, the States, as such, 
equality of the smaller states was again challenged when the '^'^osmzed. 
committee resumed consideration of the clause relating to 
the rule of suffrage in the national legislature. Brearley, Chief 
Justice of New Jersey, said that: "When the proposition for 
destroying the equality of votes came forward, he was aston- 
ished, he was alarmed. Is it fair, then, it will be asked, that 
Georgia should have an equal vote with Virginia? He would Suffrage in 
not say it was. What remedy then? One only, that a map of t^andf'''^'^ 
the United States be spread out, that all the existing bound- 
aries be erased, and that a new partition of the whole be made 
into thirteen equal parts." When, after that angry outburst, 
the Convention reassembled on Monday, the nth, Franklin, 
the peacemaker, read a carefully prepared paper intended to 
soften the conflict between four Southern and two Northern 
States, demanding representation in some degree proportioned 
to numbers, and two Northern and one Southern State, de- 
manding equal representation, — Connecticut standing as a 
mediator between them. When the test came on the motion 
"that the right of suffrage in the first branch of the national 
legislature ought not to be according to the rule established in 
the Articles of Confederation, but according to some equitable Larger states 
ratio of representation," it passed by a vote of seven states to ^"^^^^^ " 
three, Maryland being divided.^ That equitable ratio was 
found at last in the precedent set in April, 1783, when Con- 
gress had apportioned the supplies of the states for the com- 
mon treasury to the whole number of their free inhabitants 
and three fifths of other persons. At that juncture Sherman 
moved "that a question be taken, whether each state shall 
have one vote in the second branch. Everything, he said, 
depended on this. The smaller states would never agree to the 
plan on any other principle than an equality of suffrage in this 
branch." It was only possible, however, to bring five states 

1 "Massachusetts, Connecticut, * "It was then moved by Mr. 

New York, Pennsylvania, Delaware, Rutledge, seconded by Mr. Butler, 

Maryland, Virginia, North Carolina, to add to the words, 'equitable ratio 

South Carolina, Georgia, — aye, of representation,' at the end of the 

10." See Madison Papers, ii, 800- motion just agreed to, the words 'ac- 

821; Elliot, 170. cording to the quotas of contribu- 
tion.'" Madison Papers, ii, 842. 



i86 



THE AMERICAN CONSTITUTION 



[Ch. 



Senators to be 
apportioned 
according to 
population. 



New plan 
of federal 
government 
reported 
June 13 



against the six demanding proportional representation. When 
another test of strength resulted in a vote of six states against 
five, the outcome was a settlement that apportioned the Sena- 
tors among the states according to representative population, 
each state being conceded at least one vote. After guarantee- 
ing to each state a republican form of government, after refus- 
ing to guarantee to any state its territory, after holding that the 
new Constitution should be subject to "amendment whenso- 
ever it should seem necessary," after requiring oaths from the 
members of state governments to observe the national Consti- 
tution and laws, — the Convention brought the proceedings of 
that eventful day to a close. ^ On the 12th it was determined 
that "the new system" should be referred "to the people of the 
United States for ratification" ; that the members of the popu- 
lar branch should be chosen for three years, and not annually 
as proposed by Sherman and Ellsworth; ^ that the senatorial 
qualification of age should be fixed at thirty years, and that 
Senators should be permitted to serve seven years. On the 13th, 
after striking out the clause relating to the jurisdiction ofj^the 
national tribunals in such a way as to leave full room for their 
organization, and after extending that jurisdiction in certain 
important particulars, the Committee rose and reported to 
the House its conclusions in the form of nineteen resolutions 
that embodied completely the entirely new plan of federal 
government — called by the Convention " the new system' ' — 
announced to the world by Pelatiah Webster, as his invention, 
February 16, 1783. Nothing demonstrates so conclusively the 
thoroughness of the conversion wrought by Webster's publica- 
tion as the fact that during the narrow limits of the thirteen 
sessions that intervened between May 29 and June 13, his 
invention was accepted as a whole with really no opposition, so 
far as its vitals were concerned. Such opposition as was made 
proceeded from the smaller states, earnestly and justly insist- 
ing upon an equality of representation in at least one branch 
of the national legislature, a purely political and not organic 
question with which Webster, in his wisdom, had not at- 
tempted to deal. Only the four years of education that pre- 
ceded the Convention made possible so prompt an acceptance 

* Madison Papers, ii, 846; Elliot, England will never give up the point 
181. of annual elections." 

* Gerry said : "The people of New 



VII.] THE FEDERAL CONVENTION AND ITS WORK 187 

of the ' * wholly novel theory, ' ' in the form in which Madison and in the form in 
Pinckney had restated it. And here let the fact be again Tn^'piS^er 
emphasized that of the two restatements that presented by had restated it. 
Pinckney was by far the most complete, — it was not a mere 
tableau of general principles, it was a "system" of govern- 
ment. It is therefore reasonable to presume that the more fre- 
quent references in the debates to the Virginia plan, as such, 
was rather the result of a commendable spirit of deference to 
the prestige of that great commonwealth than a tribute to the 
superiority of the plan itself. However that may be, the Nine- 
teenth Resolution, presented on June 13, triumphantly vindi- 
cates the assertion that, after discussions occupying only thir- 
teen sessions, the great invention of February 16, 1783, was 
transformed into "the new system" of federal government 
now embodied in the existing Constitution of the United States. 
The report presented by Mr. Gorham was in these words: 
"i. Resolved, that it is the opinion of this Committee, that Text of 
a national government ought to be established, consisting of a '^soi'^*^o°*- 
supreme legislature, executive, and judiciary. 2. Resolved, that 
the national legislature ought to consist of two branches. 3 . Re- 
solved, that the members of the first branch of the national 
legislature ought to be elected by the people of the several 
states for the term of three years, to receive fixed stipends by 
which they may be compensated for the devotion of their time 
to the public service, to be paid out of the national treasury; 
to be ineligible to any office established by a particular state, 
or under the authority of the United States, (except those 
peculiarly belonging to the functions of the first branch,) dur-^ 
ing the term of service, and under the national government for 
the space of one year after its expiration. 4. Resolved, that the 
members of the second branch of the national legislature ought 
to be chosen by the individual legislatures; to be of the age of 
thirty years at least ; to hold their offices for a term sufficient 
to insure their independence, namely, seven years; to receive 
fixed stipends by which they may, be compensated for the 
devotion of their time to the public service, to be paid out of 
the national treasury; to be ineligible to any office established 
by a particular state, or under the authority of the United 
States, (except those peculiarly belonging to the functions of 
the second branch,) during the term of service, and under the 



I88 THE AMERICAN CONSTITUTION [Ch. 

national government for the space of one year after its expir- 
ation. 5. Resolved, that each branch ought to possess the 
right of originating acts. 6. Resolved, that the national legis- 
lature ought to be empowered to enjoy the legislative rights 
vested in Congress by the Confederation; and moreover to 
legislate in all cases to which the separate states are incom- 
petent, or in which the harmony of the United States may be 
interrupted by the exercise of individual legislation ; to negative 
all laws passed by the several states contravening, in the 
opinion of the national legislature, the Articles of Union, or 
any treaties subsisting under the authority of the Union. 7. Re- 
solved, that the rights of suffrage in the first branch of the 
national legislature ought not to be according to the rule 
established in the Articles of Confederation, but according to 
some equitable ratio of representation, namely, in proportion 
to the whole number of white and other free citizens and inhab- 
itants, of every age, sex, and condition, including those bound 
to servitude for a term of years, and three fifths of all other 
persons, not comprehended in the foregoing description, except 
Indians not paying taxes in each state. 8. Resolved, that the 
rights of suffrage in the second branch of the national legisla- 
ture ought to be according to the rule established for the first. 
9. Resolved, that a national executive be instituted, to consist 
of a single person ; to be chosen by the national legislature, for 
the term of seven years ; with power to carry into execution the 
national laws ; to appoint to offices in cases not otherwise pro- 
vided for ; to be ineligible a second time ; and to be removable 
on impeachment and conviction of malpractices and neglect of 
duty; to receive a fixed stipend by which he may be com- 
pensated for the devotion of his time to the public service, to 
be paid out of the national treasury. 10. Resolved, that the 
national executive shall have the right to negative any legis- 
lative act which shall not be afterwards passed by two thirds 
of each branch of the national legislature. 11. Resolved, that 
a national judiciary be established, to consist of one supreme 
tribunal, the judges of which shall be appointed by the second 
branch of the national legislature, to hold their offices during 
good behavior, and to receive punctually, at stated times, a 
fixed compensation for their services, in which no increase or 
diminution shall be made, so as to affect the persons actually 



VII.l THE FEDERAL CONVENTION AND ITS WORK 189 

in office at the time of such increase or diminution. 12, Re- 
solved, that the national legislature be empowered to appoint 
inferior tribunals. 13. Resolved, that the jurisdiction of the 
national judiciary shall extend to all cases which respect 
the collection of the national revenue, impeachments of any 
national officers, and questions' which involve the national 
peace and harmony. 14. Resolved, that provision ought to be 
made for the admission of states lawfully arising within the 
limits of the United States, whether from a voluntary junction 
of government and territory, or otherwise, with the consent of 
a number of voices in the national legislature less than the 
whole. 15. Resolved, that provision ought to be made for the 
continuance of Congress and their authorities and privileges, 
until a given day, after the reform of the Articles of Union 
shall be adopted, and for the completion of their engagements. 
16. Resolved, that a republican constitution, and its existing 
laws, ought to be guaranteed to each state, by the United 
States. 17. Resolved, that provision ought to be made for the 
amendment of the Articles of Union, whensoever it shall seem 
necessary. 18. Resolved, that the legislative, executive, and 
judiciary powers within the several states ought to be bound 
by oath to support the Articles of Union. 19. Resolved, that 
the amendments which shall be offered to the Confederation 
by the Convention ought, at a proper time or times after the 
approbation of Congress, to be submitted to an assembly or 
assemblies recommended by the several legislatures, to be ex- 
pressly chosen by the people to consider and decide thereon."^ 

The triumph of those who created an entirely new type of "The scheme 
federal government through the nineteen resolutions of June >s itself totally 
13 was complete. The nature of the revolution they had dared Lansing. 
wrought was tersely described by Lansing, who said: "The 
scheme is itself totally novel. There is no parallel to it to be 
found." ^ But there is no reason to believe that that fact would 
have militated against the result, in the absence of the bitter- 
ness engendered by the unjust and intolerant action of the 
larger states in depriving the smaller of equality of represent- 
ation in both branches of the national legislature. "Previous 
to the arrival of the majority of the states, the rule by which 

1 Madison Papers, u, 858-861; Elliot, 185. 
* Madison Papers, ii, 869. 



190 



THE AMERICAN CONSTITUTION 



[Ch. 



Injustice to 
the smaller 
states. 



They form 
a coalition. 



New Jersey 
plan their 
counterblast. 



they ought to vote in the Convention had been made the sub- 
ject of conversation among the members present. It was 
pressed by Gouverneur Morris and favored by Robert Morris 
and others from Pennsylvania, that the large states should 
unite in firmly refusing to the small states an equal vote, as 
unreasonable, and as enabling the small states to negative every 
good system of government, which must, in the nature of 
things, be founded on a violation of that equality." At that 
juncture Virginia, greatly to her honor, "discountenanced and 
stifled the project." ^ But unfortunately Virginia, as the 
leader of the larger or national states, changed her attitude, 
and became the champion of an injustice that came very near 
wrecking all that had been done. As Madison warmly sup- 
ported his state in that course, Dickinson said to him, "You 
see the consequence of pushing things too far. Some of the 
members from the smaller states wish for two branches in the 
General Legislature and are friends to a good National Gov- 
ernment; but we would sooner submit to foreign power, than 
submit to be deprived, in both branches of the legislature, of an 
equality of suffrage, and thereby be thrown under the domina- 
tion of the larger states." Those who rebelled against that 
injustice formed a coalition concerted among the members 
from New Jersey, New York, Connecticut, and Delaware, 
including perhaps Luther Martin of Maryland, who, as Madi- 
son tells us, "made with them a common cause, though on dif- 
ferent principles. Connecticut and New York were against 
a departure from the principle of the Confederation, wishing 
rather to add a few more new powers to Congress than to sub- 
stitute a national government. The states of New Jersey and 
Delaware were opposed to a national government, because its 
patrons considered a proportional representation of the states 
as the basis of it. The eagerness displayed by the members 
opposed to a national government, from these different mot- 
ives, began now to produce serious anxiety for the result of 
the Convention." ^ As a counterblast to the result reached on 
June 13, the coalition, speaking through Paterson of New 
Jersey, asked on the next day " that further time might be 
allowed them to contemplate the plan reported from the Com- 

^ Madison Papers, ii, 726, note. 
» Ibid., ii, 862-863, note. 



VII.I THE FEDERAL CONVENTION AND ITS WORK I91 

mittee of the Whole, and to digest one purely federal, and con- 
tradistinguished from the reported plan." On the 15th Pater- 
son presented the well-known New Jersey plan, which he 
offered as a substitute for the new creation, and, in order to 
give it "a fair deliberation, it was agreed, that it should be re- 
ferred to a Committee of the Whole; and that, in order to place 
the two plans in due comparison, the other should be recom- 
mitted." As the New Jersey plan simply proposed a revision 
of the Articles of Confederation, the Convention was at last 
brought face to face with a choice between a "confederated 
state" of the old type and a "composite state" of the new 
type. The briefness and feebleness of the struggle made by 
Paterson and his allies proves how completely the old idea 
had passed away. Despite the fact that the leader of the fallen 
cause spoke with the skill of a veteran in advocating "not his 
own opinions," but "the views of those who sent him," it was 
all in vain. The spectre of the Confederation, with its empty 
skull, its empty pocket, and its boneless arms, stood forth in its 
impotence to refute all he had to say. After the mighty Wilson 
had trampled upon his argument, Pinckney touched the heart How it was 
of the matter when he said, "The whole comes to this, as he ''■^°^p'^° 

' \ _ upon. 

conceived. Give New Jersey an equal vote, and she will dis- 
miss her scruples, and concur in the national system." The 
general debate as to the relative merits of the two systems that 
began on the i6th ended on the i8th, when the postponement 
of the consideration of Paterson's resolution was agreed to by 
ten states. 

Upon the heels of the advocate who thus struggled in vain The Hamilton 
to uphold the primitive conception of the sovereignty of the ^ ^°* 
states came the extreme exponent of the opposing school, who 
said that he "had been hitherto silent on the business before 
the Convention, partly from respect to others whose superior 
abilities, age, and experience rendered him unwilling to bring 
forward ideas dissimilar to theirs ; and partly from his delicate 
situation with respect to his own state, to whose sentiments, as 
expressed by his colleagues, he could by no means accede." 
From the Scottish clan which has given one of the most pro- 
found metaphysicians and one of the most creative mathemati- 
cians to the modern world came that brilliant offshoot who was 
born in the Island of Nevis, in the West Indies, January 11, 



192 



THE AMERICAN CONSTITUTION 



[Ch. 



Race-traits of 
the soldier- 
statesman. 



Special apti- 
tude for eco- 
nomics and 
&nance. 



Followed 

Webster's 

initiative. 



1757. To the faculty for abstract reasoning, to the shrewdness 
and persistence in administration which Alexander Hamilton, 
one of the most precocious young men of his time, drew from 
his Scottish ancestry, was united the magnetic charm, the viv- 
acity, the rare personal beauty derived from a French mother of 
Huguenot descent. In 1772, spurning "the grovelling ambition 
of a clerk," and resolved "to prepare the way for futurity," he 
sailed from the tropics to Boston; in 1773 he entered Kings 
(Columbia) College at New York; in 1774 he was aiding the 
patriot cause with tongue and pen; in 1776 he was made a cap- 
tain of artillery; and after notable service at White Plains, 
Trenton, and Princeton, he became in March, 1777, aide-de- 
camp, secretary, and confidant to Washington. The mind of 
the young soldier-statesman — who was armed with a moral 
dignity and earnestness characteristic alike of Puritan and 
Huguenot, with an inborn genius for organization, and with 
special aptitude for economics and finance — went like an 
arrow to the heart of the problem with which the financiers of 
the Revolution were struggling in vain. He was one of the very 
first to entertain the thought, even if he did not express it pub- 
licly,^ that a Federal Convention should be called for the pur- 
pose of making an entirely new Constitution, And, as stated 
heretofore, we find him in 1780 supporting the efforts of Pela- 
tiah Webster, thirty-one years his senior, who was then urging 
the appointment of a financier, that is, of a competent single 
officer to take charge of the finances in place of the committees 
or boards who had hitherto been intrusted with them.'^ When on 
February 16, 1783, Webster gave to the world the entirely new 
plan of government the Federal Convention was destined to 
adopt, Hamilton, feeling the impact of the blow, promptly noti- 
fied Congress, for the first time, of his purpose to submit to it 
a plan for the calling of a general convention, whose "object 
would be to strengthen the Federal Constitution." Finally, 
when, largely through his efforts, the trade convention that 
met at Annapolis in 1786 reassembled at Philadelphia as the 
Federal Convention of 1787, Hamilton came as a deputy from 
New York with the great invention of February 16, 1783, 



* See his private letter to James 
Duane of September 3, 1780, re- 



ferred to in Gaillard Hunt's if/tf of 
James Madison, 108. 
* See above, p. 161. 



VII.] THE FEDERAL CONVENTION AND ITS WORK 193 

restated in the form of a finished constitution. Of the famous 
oration in which he presented his plan to the Convention we 
have only a fragment. His son tells us that "the speech of 
which this brief is given, occupied in the delivery between five 
and six hours, and was pronounced by a competent judge 
[Gouverneur Morris] ' the most able and impressive he had ever 
heard.' In the course of this speech he read his plan of govern- 
ment, not the propositions which are found in the printed 
journal, but 'a full plan, so prepared that it might have gone His "full 
into immediate effect if it had been adopted.' This plan con- ^^^' 
sisted of ten articles, each article being divided into sec- 
tions." ^ Only after Hamilton's finished plan as printed in the 
Appendix has been studied is it possible to understand how 
exhaustive his preparation for the Convention really was. 
Only Hamilton and Pinckney restated the great invention as 
finished systems of government. While the plan of Hamilton More volumln- 
is more voluminous, possibly more labored than that of Pinck- o^pinckney^* 
ney, it was far less practical, far less in accord with the spirit 
that animated the Convention as a whole. While the Pinckney 
plan carefully respected Webster's basic contention that the 
new creation should be a government of limited powers, with 
the residuum of power retained by the states, the Hamilton 
plan offended the spirit of state sovereignty by proposing (Art. 
VIII, Sec. i) that "the Governor or President of each state Why it 
shall be appointed under authority of the United States, and ° ^°^ ' 
shall have a right to negative all laws about to be passed in 
the state of which he shall be Governor or President, subject 
to such qualifications and regulations as the legislature of the 
United States shall prescribe." Hamilton "was praised by 
everybody, but supported by none." ^ His plan, as such, seems 
to have made no impression whatever; it passed with the occa- 
sion ; it was not even referred to the Committee of Detail on 
July 26, when the Pinckney plan was referred. 

Thus it appears that on a single day — June 18 — the Only two 
Convention virtually disposed once and forever of the old pj^nscon- 
dream of a Confederation as embodied in the New Jersey plan 
and of the new and extreme conception of a highly centralized 
national system as embodied in the Hamilton plan. The 

* J. C. Hamilton's Life of Alexander Hamilton, ii, 490-491. 
' Yates in Elliot, i, 431. 



194 



THE AMERICAN CONSTITUTION 



ICh. 



Nineteen 
resolutions 
considered 
seriatim. 



The legislature 
to consist of 
two branches. 



Convention really considered but two plans — the Virginia 
plan and the Pinckney plan — through which the great inven- 
tion passed, after thirteen sessions, into "the new system" 
embodied in the nineteen resolutions of June 13. When on 
the 19th, King moved that the Committee of the Whole rise 
and report that they do not agree to the propositions of 
Paterson, it was carried, thus leaving the nineteen resolutions 
for consideration, seriatim, in the Convention as distinguished 
from the Committee of the Whole. On that day it was that 
Hamilton said: " I did not intend yesterday a total extinguish- 
ment of state governments; but that a national government 
must have indefinite sovereignty ; for if it were limited at all the 
rivalship of the states would gradually subvert it. The states 
must retain subordinate jurisdictions."^ While the states as 
a whole spurned that suggestion, the smaller ones were still 
firmly united in the just resolve to preserve their autonomy by 
securing an equal vote in at least one branch of the national 
legislature. If the contrary contention had not been per- 
severed in by the larger states, the bitterest of all conflicts 
would have been avoided, and the time occupied by the pro- 
ceedings shortened certainly one third. As a preliminary to 
that conflict came the suggestion of Martin, who said "he con- 
sidered that the separation from Great Britain placed the thir- 
teen states in a state of nature toward each other." To which 
Wilson replied that as he read the Declaration of Independ- 
ence the colonies "were independent, not individually but 
unitedly, and that they were confederated, as they were inde- 
pendent states." When t|ie motion came from the smaller 
states that the word "national" should be stricken out of the 
first resolution, it was surrendered without a struggle, the house 
then passing to the second, which provided that the legislature 
should consist of two branches, a matter finally settled by six 
national states reinforced by Connecticut on June 21. By 
that time the country seems to have accepted as a finality 
Webster's suggestion that the new federal legislature should 
consist of two branches instead of one. The difficulty that 
remained was in the application of that idea to a federal state 
in the absence of any precedent in history to guide or suggest 
the method of it. Difficult as that task certainly would have 
* Madison Papers, ii, 905; Elliot, 212. 



VII.] THE FEDERAL CONVENTION AND ITS WORK 195 

been under any circumstances, it was complicated here not only 
by the intense jealousy existing between the smaller and larger 
states, but also by the existence of African slavery that intruded 
itself into every basis upon which representation could be ap- 
portioned. The larger states strenuously insisted upon repre- 
sentation in both branches of the legislature based entirely 
upon population, — the smaller were immovable in their de- 
mand for equality as states in at least one of them. 

On June 25, Wilson in stating the case for the larger states 
said : "When I consider the amazing extent of country, the im- Claim of / 
mense population which is to fill it, the influence which the stated by 
government we are to form will have, not only on the present Wilson; 1 
generation of our people and their multiplied posterity, but j 

on the whole globe, I am lost in the magnitude of the object. 1 

We are laying the foundations of a building in which millions \ 

are interested, and which is to last for ages. In laying one stone 
amiss, we may injure the superstructure; and what will be the 
consequence if the corner-stone should be loosely placed? A 
citizen of America is a citizen of the general government, and 
is a citizen of the particular state in which he may reside. 
The general government is meant for them in the first capac- 
ity; the state governments in the second. Both governments 
are derived from the people, both meant for the people; both, 
therefore, ought to be regulated on the same principles. In 
forming the general government, we must forget our local 
habits and attachments, lay aside our state connections, and 
act for the general good of the whole. The general govern- 
ment is not an assemblage of states, but of individuals, for 
certain political purposes; it is not meant for the states, but 
for the individuals composing them; the individuals, therefore, 
not the states, ought to be represented in it." ^ Ellsworth in- that of small 
stantly "urged the necessity of maintaining the existence and worth, 
agency of the states. Without their cooperation it would be im- 
possible to support a repubHcan government over sovzist an ex- 
tent of country. An army could scarcely render it practicable." 
It was on that day determined by a vote of nine to two "that 
the members of the second branch be chosen by the individual 
legislatures." Virginia and Pennsylvania dissented, because 
they looked upon that method of choice as the stepping-stone to 
* Madison Papers, ii, 956-957; Elliot, 239; Yates in Elliot, i, 445, 446. 



196 



THE AMERICAN CONSTITUTION 



[Ch. 



A crisis 
reached on 
June 28. 



Madison adds 
fuel to the 
flame. 



The Connec- 
ticut compro- 
mise. 



an equal representation. Not until the 27th was the irrepress- 
ible conflict opened by Rutledge, who moved that the rules of 
suffrage in the two branches of the national legislature should 
then be considered. During the fierce contest between the 
larger and the smaller states that ensued, in which Madison, 
Wilson, and King championed the cause of the former, while 
Sherman, Ellsworth, Lansing, Paterson, and Dickinson were 
equally resolute for the latter, feeling became so intense that on 
the 28th, as Martin afterwards reported, the Convention was 
"on the verge of dissolution, scarcely held together by the 
strength of a hair." ^ So loud was the tempest that Franklin, 
in the hope of restoring calm, proposed before adjournment 
that the proceedings should be opened every morning with 
prayer, and Randolph, in repeating that suggestion, proposed 
that a sermon be preached at the request of the Convention 
on the 4th of July.^ On the next day, after Johnson had con- 
tended that "in one branch of the general government the 
people ought to be represented, in the other the states," after 
Gorham had declared that it was his duty to "stay here as long 
as any other state would remain with them, in order to agree 
on some plan that could with propriety be recommended to the 
people," after Ellsworth had said, "I do not despair, I still 
trust that some good plan of government will be devised and 
adopted," Madison, undaunted, added fresh fuel to the flame 
by urging that "the states never possessed the essential rights 
of sovereignty ; these were always vested in Congress. Voting 
as states in Congress is no evidence of sovereignty. The state 
of Maryland votes by counties. Did this make the counties 
sovereign? The states, at present, are only great corporations, 
having the power of making by-laws not contradictory to the 
general Confederation." ^ At the end of that day the tension 
was lessened by a decision, never departed from, that the rule 
of suffrage in the first branch ought to bear proportion to the 
population of the several states. Then it was that Ellsworth 
said that he was not sorry that the vote just passed had deter- 
mined against the old rule in the first branch. "He hoped it 
would become a ground of compromise with regard to the 
second branch. We were partly national, partly federal. The 



» Elliot, i, 358. 

* Madison Papers, ii, 985-986. 



' Yates in Elliot, i, 461 ; Madison 
Papers, ii, 990. 



VII.] THE FEDERAL CONVENTION AND ITS WORK 197 

proportional representation in the first branch was conform- 
able to the national principle, and would secure the large states 
against the small. An equality of voices was conformable to 
the federal principle, and was necessary to secure the small 
states against the large. He trusted that on this middle 
ground a compromise would take place." ^ Wilson's counter- 
blast to that noble attempt to solve the problem was this: "If 
the minority of the people of America refuse to coalesce with 
the majority on just and proper principles; if a separation 
must take place, it could never happen on better grounds. The 
votes of yesterday against the just principle of representation, 
were as twenty-two to ninety, of the people of America. Tak- 
ing the opinions to be the same on this point, and he was sure, 
if there was any room for change, it could not be on the side of 
the majority, the question will be, shall less than one fourth 
of the United States withdraw themselves from the Union, or 
shall more than three fourths renounce the inherent, indisput- 
able and unalienable rights of men, in favor of the artificial 
system of states?" ^ Wilson did not then understand that the 
majority were on the brink of a surrender to the minority. The 
break in the ranks of the larger states began on June 30, when 
Davie of North Carolina declared that he preferred the plan of Davie 
Ellsworth to the rule of proportional representation that would ^ ^°^^ 
in time render the Senate too numerous a body. "He thought supports it. 
that, in general, there were extremes on both sides. We were 
partly federal, partly national, in our union; and he did not 
see why the Government might not in some respects operate 
on the states, in others, on the people." Then it was that the 
peacemaker, Franklin, said: "When a broad table is to be 
made, and the edges of planks do not fit, the artist takes a 
little from both, and makes a good joint. In like manner, here, 
both sides must part with some of their demands, in order that 
they may join in some accommodating proposition." When 
the Convention reassembled on July 2, Cotesworth Pinckney, 
in order to execute that idea, "proposed that a committee 
consisting of a member from each state be appointed to devise 
and report some compromise." ^ In order to give that com- 

* Yates in Elliot, i, 464; Madison ' "He liked better the motion of 
Papers, ii, 996-997. Dr. Franklin (q. v. June 30, p. 

* Madison Papers, ii, looo-iooi. 1009). Some compromise seemed 



193 



\/ 



Compromise 
reported on 
Julys- 



THE AMERICAN CONSTITUTION 



[Ch. 



Concession as 
to representa- 
tion of slaves. 



mittee, elected by ballot, composed of Franklin, Gerry, Ells- 
worth, Yates, Paterson, Bedford, Martin, Mason, Davie, 
Rutledge, and Baldwin, time for deliberation, and to all an 
opportunity to celebrate the anniversary of independence, the 
Convention adjourned until July 5. When on that day the 
Grand Committee declared that in the first branch of the First 
Congress there should be one member for every forty thousand 
inhabitants, counting all the free and three fifths of the rest; 
that in the second branch each state should have an equal 
vote,^ the anger of the larger states found vent through 
Gouverneur Morris, who cried out: "State attachments and 
state importance have been the bane of this country. We can 
not annihilate but we may perhaps take out the teeth of the 
serpents." ^ That hope was in vain; with teeth undrawn "the 
serpents" held on to the fruits of the victory they had won. 

On the 7th, that part of the report allowing each state an 
equal vote in the Senate was retained ; on the loth, the commit- 
tee of one from each state on the ratio of representation in the 
popular branch parceled out thirty-five members to the North, 
and thirty to the South out of the sixty-five assigned to that 
branch ; on the i ith, the First Congress under the new Constitu- 
tion was required to provide for a census. On that day it was 
that Randolph agreed to the amendment that proceeded from 
North Carolina embodying the final concession on the represen- 
tation of slaves, the permanent basis being the free inhabitants 
and three fifths of all others. ^ It is hard not to be touched 
by Bancroft's declaration that when the Convention adjourned 
on that day "Virginia with a united delegation had her hand 
on the helm, while North Carolina kept watch at her side."* 

Next day Gouverneur Morris proposed that taxation should 
be proportioned to representation in such a way as to ex- 
tend it to every branch of the revenue. When the dangers of 
that proposal were pointed out, the mover limited it to direct 



to be necessary, the states being 
exactly divided on the question for 
an equality of votes in the second 
branch." Madison Papers, ii, 1017. 
^ In consideration of that conces- 
sion to the smaller states, it was 
determined that the first branch 
should possess the sole power of orig- 



inating taxes and appropriations. 

* Madison Papers, ii, 1030. 

* Madison Papers, ii, 1066; El- 
Hot, 295. Butler and Cotesworth 
Pinckney instantly demanded that 
the blacks should be counted equal- 
ly with the whites. 

* Hist, of Const., ii, 82. 



VII.] THE FEDERAL CONVENTION AND ITS WORK 199 

taxation, saying that "it would be inapplicable to indirect 
taxes on exports and imports and consumption," Thereupon 
the Convention agreed unanimously that "direct taxation Direct taxation 
ought to be in proportion to representation."^ Thus was ^ndrepresenta- 
finally fixed the compromise proportioning representation to 
direct taxation, and both to the number of free inhabitants 
and three fifths of the rest.^ And yet despite all that had been 
accomplished the settlement as fixed by the Grand Committee 
was not safe, — the death-grapple had yet to come. When the 
Convention reassembled on Monday the i6th the question was 
taken on "the whole report, as amended, and including the 
equality of votes in the second branch." Four of the six states 
(Virginia' Pennsylvania, South Carolina, and Georgia) which 
demanded a proportional representation in that branch still 
stubbornly refused to yield that vital point. Victory was only 
won by pledging Massachusetts to neutrality (Gerry, Strong, — 
aye; King, Gorham, — no), and by the bold and determined 
stand taken by North Carolina in favor of justice to the smaller 
states. In response to the signal Davie had given on June 30, 
North Carolina broke away at the critical moment from her North Caro- 
great associates and gave a majority of one to the smaller |.^°^ f J^smaUer 
states.^ When on the 17th Gouverneur Morris attempted to states. 
reopen the question, a failure to second his motion was an in- 
dication from the larger states that they accepted the decision 
of the day before as final. The last word was not spoken, how- 
ever, until the 23d, when the number of Senators from each 
state was fixed at two, each to have one vote.* The new Con- 
stitution was now made in fact if not in name; and it was em- 
bodied in the twenty-three resolutions into which the original 
nineteen had grown since the 13th of June. On the 26th those Twenty three 
resolutions were referred to "the Committee of Detail, and the r^f^"^°°s 

' reierred to 

Convention then unanimously adjourned till Monday, August Committee 
6, that the Committee of Detail might have time to prepare °^ Detail, 
and report the Constitution." ^ That committee was com- 

1 Madison Papers, n,ioSi;'E\]iot, * Madison Papers, ii, 1186; El- 

302. ^ liot, 357. 

' Even Georgia approved, and ^ Madison Papers, ii, 1220. For 

South Carolina divided her vote. the text of the twenty-three resolu- 

' Connecticut, New Jersey, Dela- tions referred to the Committee of 

ware, Maryland, North Carolina, — Detail, see Appendix xvi. 
aye, 5. Madison Papers, ii, 1107; 
Elliot, 316. 



200 



v/ 



THE AMERICAN CONSTITUTION 



John 

Rutledge, 

chairmaD. 



A great 
orator. 



[Ch. 



posed of Wilson, Ellsworth, Gorham, Randolph, and Rutledge, 
of whom the last was chairman; and to it were referred, along 
with the resolutions, the Pinckney plan and the New Jersey 
plan. Hamilton's plan was not referred.^ On July lO he had 
been deserted by Yates and Lansing, dominated as they were 
by the factious selfishness of Clinton, who had openly declared 
that no good was to be expected from the deliberations at 
Philadelphia ; that the Confederation might still be found ade- 
quate to all the purposes of the Union. ^ Thus left alone, with- 
out a vote, Hamilton took but little part in the subsequent 
proceedings, whose results he was so brilliantly to defend in the 
pages of "The Federalist." 

As the Committee of Detail was armed with such large 
constructive powers as to permit it to evolve a finished con- 
stitution out of such data as it might collect even beyond 
the twenty-three resolutions and the Pinckney plan, it is not 
strange that the Virginia jurist, Randolph, and the South 
Carolina jurist, Rutledge, should have been appointed as 
special guardians of the contributions made by their respective 
states. Rutledge, who was nearly twenty years older than 
Charles Pinckney, was the foremost statesman and jurist of his 
time south of Virginia. Born at Charleston, of Scotch-Irish 
ancestry, he was sent, after careful private instruction at home, 
to study law in the Temple at London. In 1765 he began his 
national career in the Stamp Act Congress of 1765, and in 1774 
he became eminent as a member of the First Continental Con- 
gress, Patrick Henry declaring him to be "by far the greatest 
orator ' ' in that body. In 1 776 he was a member of the Board of 
War, soon taking an active part in the field as captain of artil- 
lery. After the war he returned to his home and served in the 
legislature. He is said to have been so hopeful and resourceful 
amid the gravest trials that timidity and wavering disap- 
peared before him. Such were the antecedents, such the char- 
acter and attainments of the Chairman of the Committee of 
Detail, who certainly must have regarded with respect, prob- 
ably with special pride and interest, the finished "system" 
of government contributed by his brilliant and youthful com- 
patriot. There is no reason to believe that Randolph took any 

1 Madison Papers, ii, 1197, 1220-1226. 
» Penn. Packet, July 26, 1787. 



VII.l THE FEDERAL CONVENTION AND ITS WORK 201 

less interest in the contribution of Madison. Against the two 
Southern members, Rutledge and Randolph, stood the two 
Northern members, Wilson and Gorham, while as an arbi- 
trating force between the two stood Ellsworth of Connecticut, Ellsworth as 
who had just contributed so much to the success of the famous "°*^^*°'- 
compromise that had saved the Convention from dissolution. 
In the absence of any record or personal narrative of their ten 
days of deliberation there has been, until very recently, practi- 
cally nothing to guide us as to the manner in which their de- 
licate and difficult functions were performed. As a matter of 
course their primary duty was to elaborate the twenty-three 
resolutions into a constitution; and we know from the result 
that they actually turned each resolution into an article, many 
of which were subdivided into sections as receptacles for the 
added details. From what source did these added details 
come? Certainly not from the Virginia plan, which contained 
none. As stated heretofore, the Virginia Resolutions only set 
forth the basis upon which a constitution might be constructed, 
— in the words of Judge Nott they only "brought before the 
Convention questions for abstract discussion and bases on 
which to rest principles of government." As such they had 
been exhausted already; the Committee of Detail, able as it 
was, could not draw from an empty well. The most likely 
source from which details could be drawn was the Pinckney importance of 
"system," whose sixteen articles occupy eleven pages of the P^ickney's 
' ' M adison Papers . " I f we have there a substantially true copy of 
the original — and who will be partisan enough to doubt it 
now — a mere comparison of it with the report of the Commit- 
tee of Detail puts beyond all question Pinckney's marked 
influence in directing the Committee's work. We have every 
reason to believe that all questions that came before it were 
probed to the bottom ; that the state constitutions were looked 
to as the best sources for approved expressions and long-tried 
formulas. As an illustration of the manner in which Randolph 
worked, special value should be attached to the reprint in fac- 
simile recently made by a well-known specialist of a tentative 
draft of a constitution mainly in the handwriting of Randolph Randolph's 
with parts written in by Rutledge, who revised it no doubt at ^^^^^' 
the time. The internal evidence justifies every conclusion in 
which Mr. Meigs has indulged in regard to the character of this 



202 



THE AMERICAN CONSTITUTION 



[Ch. 



Professor 

Jameson's 
discovery. 



Final draft 
by Wilson. 



paper, and also as to the probable time of its production. No 
possible difficulty should arise "from the fact that the draft 
covers a good many points which are not included in the resolu- 
tions referred, but a very little consideration will show that 
this is only what ought to be expected. The resolutions were by 
no means supposed to include the whole of the proposed Con- 
stitution, and the Committee of Detail was appointed for the 
very purpose of sketching the instrument at length, and filling 
in the details which were required by the general outline of the 
government contained in the resolutions." ^ While gathering 
such details, largely no doubt from the Pinckney "system," 
Rutledge and Randolph naturally worked together, and the 
paper in question is certainly one of the charts by which they 
were guided. But more conclusive still are the evidences of 
the importance of the Pinckney plan to the work of the Com- 
mittee very recently drawn from two papers found among the 
Wilson manuscripts in the Library of the Historical Society of 
Pennsylvania to which brief reference has been made already.^ 
The first paper, which is in Wilson's handwriting, was dis- 
covered by Professor Jameson and published by him in the 
"Annual Report of the Historical Association, 1902" (vol. I, 
p. 151). That paper, containing the preamble of the Pinckney 
draft, and consequently of the draft of the Committee, is fol- 
lowed by the first three articles of the Committee's draft, with 
some slight variations of language; and then, under the caption 
of what should be Article iv, come twenty-nine paragraphs con- 
taining provisions closely agreeing with provisions in the Com- 
mittee's draft, but incoherent in their order. The second sheet 
is missing, and the third contains various provisions following 
closely the Seventeenth, Eighteenth, Nineteenth, Twentieth, 
and Twenty-first Resolutions. Near the close is the provision re- 
lating to the veto power taken from the Constitution of Massa- 
chusetts. The second paper, likewise discovered by Professor 
Jameson, embodies a final draft by Wilson, evidently prepared 
for the consideration of other members of the Committee, as 
the first seems to have been prepared for his personal use. It is 
written on large foolscap in what is called double columns, — 
half of each page being left blank for the comments and sug- 

* Meigs, The Growth of the Constitution, ^21. See also preface. 

* See above, p. 35. 



VII.] THE FEDERAL CONVENTION AND ITS WORK 203 

gestions of others. This final draft in the clear, legible, almost 
feminine hand of Wilson, with scarcely a clerical error before 
the work of revision began, is scarred and slashed by forty-three 
amendments scrawled upon it in the bold, slovenly, and illeg- 
ible writing of Rutledge. This final draft, unlike the first, is 
divided into articles, but unlike the Committee's, is not sub- 
divided into sections. Thus it appears that Rutledge gave 
probably more attention to the Wilson than to the Randolph 
draft, as he wrote many more amendments on its margin. 
There is nothing whatever to show that either Ellsworth or 
Gorham, who were not constructive in the Convention, ever 
attempted to draft a constitution ; everything in the Commit- 
tee's report is traceable to Pinckney, Rutledge, Wilson, and 
Randolph ; they were its authors. Judge Nott says with con- Judge Nott's 
vincing force that "there are three important articles in ^°™™^^^- 
Wilson's draught which are not Wilson's. These appear on the 
margin in the handwriting of Rutledge and answer to Articles 
XIV, XV, and xvi of the Committee's draught. As they 
are in almost the precise language of Pinckney's Articles xii 
and XIII, the much-repeated question again arises, did Rut- 
ledge take them from the Pinckney draught ; were they then in 
the Pinckney draught to be taken; or did Pinckney abstract 
them from the Committee's draught? The question is easily 
and decisively answered: these articles are described in the ^Ob- 
servations '; Pinckney's title to them cannot be questioned; Wilson 
and Rutledge had his draught before them, and used it, when Rut- 
ledge wrote those articles upon the margin.'' ^ Pinckney's tri- 
umphant vindication by means of documents so imperfect, so What Pinck- 
circumstantial in many particulars, should admonish all special ^on^t^^u^*^^' 
students of the subject that it is useless to fight longer against 
the overshadowing facts as to the authorship of "the new sys- 
tem" as a whole embodied in the document of February 16, 
1783, — one of whose greatest marvels is its completeness. 

When on August 6, "Mr. Rutledge delivered in the report Report of 
of the Committee of Detail," each member of the Convention ^^"^^^"ee 

' of Detail, 

received a copy of its draft of a constitution, printed on broad- August 6. 

sides in large type, with wide margins and spaces for minutes 

or amendments. On the 7th, the work of revision began in 

earnest, and from that time until September 10 the Conven- 

^ The Mystery of the Pinckney Draught, p. 182. 



204 



THE AMERICAN CONSTITUTION 



[Ch. 



Special 
committees. 



Choice of an 
executive. 



A single per- 
son to be 
chosen. 



tion subjected the draft to a minute examination, clause by 
clause. During that time, as the members grew weary of the 
work, more and more subjects were referred to special commit- 
tees, until finally the postponed and unfinished parts of the 
Constitution were referred to a committee constituted for that 
purpose. From these committees came many important pro- 
visions, notably from the committee last named those relating 
to the method of electing a President.^ How to regulate the 
choice of a republican chief magistrate was a difficult problem, 
as neither the Greek nor Low-Dutch leagues had had a separ- 
ate executive branch, and as the elective monarchies of the 
Papal States, of Poland, and of Germany furnished no helpful 
precedents. The Committee of Detail simply reported that 
"the executive power of the United States shall be vested in 
a single person. His style shall be 'The President of the 
United States of America,' and his title shall be, ' His Excel- 
lency.' He shall be elected by ballot by the legislature," ^ — 
a substantial reproduction of Webster's suggestion that "the 
supreme executive authority" should be vested in a Council of 
State, "one of which to be appointed President by Congress." 
The Virginia plan simply provided in the same way that the 
President should "be chosen by the national legislature for the 
term of ";and the Pinckney plan that "he shall be 

elected for years; and shall be reeligible." Not until 

near the close of the Convention was the method of his election 
determined. As early as July 26, after Mason had restated 
the seven plans proposed of electing the chief magistrate, the 
plan he considered best was accepted ; it was then agreed that 
a single person should be chosen by the national legislature for 
the term of seven years; and that he should be ineligible a 
second time.^ Two days before, Gouverneur Morris declared : 
"Of all possible modes of appointing the Executive, an election 
by the people is best; and election by the legislature is worst." 
When on August 24 that part of the report of the Committee 



^ On September 4, the Committee 
on Unfinished Portions, of which 
Gouverneur Morris was a member, 
made a report working an entire 
change in the method of electing a 
President as previously outlined. See 
Madison Papers, iii, i486 sq. 



* It also provided that "he shall 
hold his ofifice during the term of 
seven years; but shall not be elected 
a second time." 

* Madison Papers, ii, 1207; Elliot, 
368. 



VII.] THE FEDERAL CONVENTION AND ITS WORK 205 

of Detail relating to the Executive came before the Convention, 
he revived the plan of choosing the President by electors, and 
it received the support of five states including his own.^ Opin- 
ion in favor of that plan then ripened so fast that on August 
31, the mode of choosing the President, his powers, and the 
question of his reeligibility were referred to the Grand Commit- 
tee elected on that day for the consideration of postponed and 
unfinished business. ^ On September 4, after full considera- 
tion, the report was in favor of a term of four years; the elec- 
tion was vested in electors to be appointed in each state as its 
legislature might direct; and such electors were to be equal to 
the whole number of its Senators and Representatives in Con- 
gress.' Thus the electoral colleges collectively were to be the Electoral col- 
exact counterpart of the joint convention of the national legis- ^^^^ * 
lature. In the same report it was provided that "in every case, 
after the choice of the President, the person having the great- 
est number of votes shall be Vice-President ; but if there shall 
remain two or more who have equal votes, the Senate shall 
choose from them the Vice-President." In order to make an Vice-President 

excuse for his existence the Convention provided that he should *° ^^ President 

,.,,.., of Senate. 

be President of the Senate, despite Mason s objection that 
"that is an encroachment on the Senate's rights; and, more- 
over, it mixes up too much the legislative and the executive." * 
In order to master the details of the remainder of the gravely 
important and highly interesting work done between August 
7 and September 10, the student must plough his way, page 
by page, through the record itself, that ends on the day last 
named with Randolph's despairing question: "Was he to pro- 
mote the establishment of a plan, which he verily believed 
would end in tyranny? "^ 

On September 8, a committee was appointed "to revise Committee on 
the style of and arrange the articles which had been agreed to sftemberKf 
by the House." That committee, chosen by ballot, consisted 
of Johnson, Hamilton, Gouverneur Morris, Madison, and 
King.^ On the 12th, Johnson "reported a digest of the plan, of 

^ Madison Papers, iii, 142 1. ler, and Baldwin. Madison Papers, 

' The eleven, elected by ballot, iii, 1478. 
were Gilman, King, Sherman, Brear- ' Ibid. 1485-1488; Elliot, 507. 

ley, Gouverneur Morris, Dickinson, * Ibid. 1517. 

Carroll, Madison, Williamson, But- * Ibid. 1541. 

' Ibid. 1532. 



206 1 



THE AMERICAN CONSTITUTION 



[Ch. 



The last day, 
September 17. 
Franklin's 
appeal. 



Washington 
addresses 
Convention 
for first time. 



which printed copies were ordered to be furnished to the mem- 
bers. He also reported a letter to accompany the plan to Con- 
gress." ^ Whatever opportunity for improvement remained, 
after the critical review the Convention had made of every 
clause of every section, was most skillfully utilized by Gouv- 
erneur Morris,^ who undoubtedly cast the Constitution in its 
final form not only by rearranging its parts, but also by remov- 
ing as far as possible all redundant and equivocal expressions. 
While the report of the Committee on Style was pending, quite 
a number of minor amendments were made, — not until the 
15th was the Constitution ordered to be engrossed.^ , 

On the very last day, Monday the 1 7th, after the engrossed in- 
strument had been read, Franklin, in the hope of winning over 
the three dissidents, said: "Mr. President, I confess that there 
are several parts of this Constitution of which I do not at pre- 
sent approve, but I am not sure I shall never approve them. It 
astonishes me to find this system approaching so near to perfec- 
tion as it does. On the whole, sir, I cannot help expressing a 
wish that every member of the Convention, who may still have 
objections to it, would with me on this account doubt a little 
of his own infallibility, and, to manifest our unanimity, put his 
name to this instrument." In moving that it be signed by the 
members, he made a final and ineffectual effort to win over the 
obdurate Randolph, Mason, and Gerry, by offering the simple 
testimonial that the Constitution had received "the unani- 
mous consent of the states present." Before the question was 
put, a proposal was made by Gorham, upon an intimation from 
Washington, to render the House of Representatives a more 
popular body by allowing one member for every thirty thou- 
sand inhabitants. Washington deemed this matter so import- 
ant that, for the first time, he addressed the Convention and 
urged the passage of the amendment. In putting the question 
he said: "The smallness of the number of Representatives has 
been considered by many members as insufficient security for the 
rights and interests of the people; and to myself has always ap- 
peared exceptionable ; late as is the moment, it will give me much 



* Madison Papers, iii, 1543. 

* See G. Morris to T. Pickering, 
Dec. 22, 1814, in Life, by Sparks, iii, 
323- 



» Madison Papers, ii, 1595; Elliot, 

553. 



VII.] THE FEDERAL CONVENTION AND ITS WORK 207 

satisfaction to see the amendment adopted unanimously." * 
And so it was. Having thus spoken his first and the Con- 
vention's last word, Washington — after its journals and 
papers had been confided to his care, "subject to the order of 
Congress, if ever formed under the Constitution," and after the 
delegations had come forward in geographical order and affixed 
their signatures to it — early in the evening retired "to medi- 
tate on the momentous work which had been executed." ^ 

On the 20th of September, Washington's letter as President Resvdt re- 
of the Convention, together with its resolutions and the full Qj^^'^gsg 
text of the new Constitution, were laid before Congress ; and September 20. 
despite Richard Henry Lee's contention that that body had no 
power to assist in creating a "new Confederacy of nine," ^ it 
unanimously resolved, on the 28th, after obliterating every 
record of opposition, that the report, with the letter and resolu- 
tions accompanying the same, be sent to the several legisla- 
tures, in order to be submitted to a convention of delegates to 
be chosen in each state by the people thereof in conformity 
with the resolves of the Convention.^ As Article vi provided 
that "the ratification of the Conventions of nine states shall be 
sufficient for the establishment of this Constitution between 
the states so ratifying the same," the fate of the new system, 
with its power to regulate commerce in the interest of all, now Opposition to 
depended upon the judgments to be rendered by at least nine 
of them. By reason of the existence of that power, it was most 
bitterly and stubbornly opposed in the great State of New 
York, with her splendid harbor so capable of a world-wide 
commerce, and with rivers flowing directly to the sea, to Dela- 
ware and Chesapeake bays, to the Mississippi and to the 
water-course of the St. Lawrence. She could not lose sight of 
the fact, sorely as she needed an efficient government, that 
more than half of the goods consumed in New Jersey, Con- 
necticut, Vermont, and in the western parts of Massachusetts 
were brought to her harbor and paid impost for its use.^ 
Among the malcontents in Virginia was George Mason, who in 
stating his objections said that the capital crime in the new 

1 Madison Papers, ii, 1599, 1560; * Journals of Congress, iv, 782. 

Elliot, 555, 556. 6 Cf . Williamson to Iredell, July 7, 

* Washington's diary for that day. 1788. McRhee's /rede//, ii, 227, 228; 

» Madison Papers, ii, 643; Elliot, Bancroft, ii, 339; 232, 297. 
566. 



the commerce 
clause. 



208 



THE AMERICAN CONSTITUTION 



[Ch. 



Negotiations 
between Jay 
and Gardoqui, 
178S. 



Delaware first 
to ratify, 
December 7, 
1787; 



Pennsylvania 
and New 
Jersey 
same month; 



Georgia, 
January, 
1788; 



system was the grant to Congress of power to regulate com- 
merce by a bare majority vote.^ For a time from Virginia, 
with her ample harbors convenient to the ocean, proceeded 
the Southern opposition to the consolidation of the Union. 
But the South had been profoundly alarmed when the negotia- 
tions between Jay and Gardoqui threatened, in July, 1785, to 
result in an agreement by which the United States was to pay 
to Spain as the price of a treaty of reciprocity in commerce the 
abandonment of the navigation of the Mississippi for a period 
of twenty-five or thirty years. "There is danger," reported 
Otto to Vergennes, "that the discussion may become the germ 
of the separation of the Southern States." ^ That possible 
alternative frightened even Randolph, who wrote to the 
Speaker of the House of Delegates of his state, October 10, 
1787: "Dreadful as the total dissolution of the Union is to my 
mind, I entertain no less horror at the thought of partial con- 
federacies. The utmost limit of any partial confederacy, 
which Virginia could expect to form, would comprehend the 
three Southern and her nearest Northern neighbor. But they, 
like ourselves, are diminished in their real force by the mixture 
of an unhappy species of population." ^ While the jealous 
Titans thus halted between their local self-interests and their 
fears, the first step forward was taken by loyal little Delaware, 
that ratified unanimously December 7, 1787.* The moment 
that an equality of vote in the Senate was conceded, her one 
element of opposition had disappeared. The lead thus taken by 
"the Delaware state" was promptly followed by the conven- 
tion of the great commonwealth from which she had sprung. 
On December 12, Pennsylvania ratified by a vote of forty- 
six to twenty- three; and on the i8th of the same month, the 
people of New Jersey, guided by such men as Brearley, Wither- 
spoon, Neilson, and Beatty, "by the unanimous consent of the 
members present, agreed to, ratified, and confirmed the pro- 
posed constitution and every part thereof." Georgia opened 
the new year of 1788 with a third unanimous ratification on 
January 2, attended with an expression of the hope that "her 



* George Mason to Washington, 
Oct. 7, 1787. Sparks, ix, 267, 268, 
note. 



* Otto to Vergennes, lOth Sep- 
tember, 1786. 

» Elliot, i, 487. 

* Ibid., ii, 497, 499. 



VII.] THE FEDERAL CONVENTION AND ITS WORK 209 

cheerful assent would tend to consolidate the union" and "pro- 
mote the happiness of the common country" ; ^ and on the 9th 
of the same month, Connecticut — after James Wadsworth Connecticut 
had objected to duties on imports as partial to the Southern same month. 
States — ratified by a vote of one hundred and twenty-eight 
to only forty against.^ The next state to speak was Massachu- 
setts, whose people were divided almost equally. It was a crit- 
ical moment. "The decision of Massachusetts either way," 
wrote Madison, "will involve the result in New York," and 
a negative would arouse to active resistance the majority in 
Pennsylvania. Langdon reported that Rhode Island and New 
Hampshire would ratify if Massachusetts should act favorably. 
Bowed down with debts and fresh from the agonies of a sup- The struggle in 
pressed insurrection, the entire population of the western Massachusetts, 
counties that had sided with Shays was bitter against the Con- 
stitution, while the larger centres and in general the eastern 
part of the state favored it. Before Samuel Adams, the helms- 
man of the Revolution at its origin, had time to express himself, 
his constituents of the industrial classes at Boston warned him 
that if the Constitution should be rejected "navigation" 
would languish and "skillful mechanics be compelled to emi- Warning to 
grate, so that any vote of a delegate from Boston against ^j™"^^ 
adopting it would be contrary to the interests, feelings, and 
wishes of the tradesmen of the town." Such was the warning 
given to the typical home-ruler, who was startled when on 
entering the new "building, he met with a national govern- 
ment instead of a federal union of sovereign states." Objec- 
tions came in many forms. The compromise touching the tax- 
ation and representation of slaves was bitterly assailed ; ^ com- 
plaint was made that there was no religious test, that a Papist 
or an infidel was as eligible as a Christian. James Neal of Maine 
said that he could not favor "making merchandise of the bod- 
ies of men, and unless this objection is removed I cannot put 
my hand to the Constitution." And last and most of all it was 
objected that there was no bill of rights. But the leaders of the 
great assembly were true to the national cause. Fisher Ames, Fisher Ames. 

1 Stevens, History of Georgia, "Slavery could not be abolished by 

U, 387. A salute of thirteen guns act of Congress in a moment; but 

followed the ratification. it has received a mortal wound." 

* Penn. Packet, Jan. 24, 1788. Elliot, ii, 41, 149. 

* Dawes of Boston answered: 



210 



THE AMERICAN CONSTITUTION 



[Ch. 



after earnestly rebuking the importation of slaves, said : "This 
constitution is comparatively perfect; no subsisting govern- 
ment, no government which I have ever heard of, will bear 
a comparison with it. The State Government is a beautiful 
structure, situated, however, upon the naked beach; the Union 
is the dike to fence out the flood." ^ And when the time came 
for the debate to be closed by Stillman, a Baptist minister, he 
said: "Cling to the Union as the rock of our salvation, and 
finish the salutary work which hath begun." King had ex- 
plained already the nature of the mighty transition that was 
to take place from a league of states, based on the old quota 
system, to a composite state instituted by the people with the 
right to execute its own laws directly on individuals.^ No one 
did more, however, to remove the gravest difficulty that de- 
terred Massachusetts, as well as many states that were to fol- 
Hancock. low her, than Hancock, who, before putting the question, said: 

"I give my assent to the Constitution in full confidence that 
the amendments proposed will soon become a part of the sys- 
tem. The people of this commonwealth will quietly acquiesce 
in the voice of the majority, and, where they see a want of per- 
fection in the proposed form of government, endeavor, in a 
constitutional way, to have it amended." ^ On the basis of that 
noble declaration the battle was won on the 6th, when the 
bells and the artillery announced the glad tidings after the 
motion to ratify had been carried by the narrow majority of 
nineteen votes out of a total of three hundred and fifty-five.* 
But with even that narrow margin opposition vanished; 
amidst mutual congratulations all "smoked the calumet of 
love and union." 

Early in this critical year, Hamilton, Madison, and Jay were 

engaged in the publication of the brilliant expositions of the 

new Constitution contained in "The Federalist," which sur- 

I / vives as a permanent contribution to the political literature 

of the world. ^ In a great case Chief Justice Marshall said: " It 



Battle won 
February 6. 



"The Federal- 
ist," 1788. 



1 Elliot, ii, 154-159- 

2 Ibid., ii, 54-57. 

* Ibid., ii, 174-176. 

* 187 votes against 168. Elliot, ii, 
181. 

^ "The undertaking was pro- 



James Madison, with a request to 
join him and Mr. Jay in carrying it 
into effect." (Madison in a paper 
entitled "The Federalist.") "It 
was undertaken last fall by Jay, 
Hamilton, and myself. The pro- 



posed by Alexander Hamilton to posal came from the two former." 



VII.] THE FEDERAL CONVENTION AND ITS WORK 211 

is a complete commentary on our Constitution, and is appealed 
to by all parties in the questions to which that instrument has 
given birth." ^ 

By Massachusetts the torch was passed on to Maryland, Maryland 
where Washington's influence, supported by that of Madison, ^p^fae 
on the Maryland side of the Potomac was sorely needed to 
counteract the movements of the anti-federalists of Virginia, 
zealous as ever under the leadership of Richard Henry Lee 
and Patrick Henry, who were doing their utmost to bring 
about the organization of a Southern Confederacy. But 
when the convention met at Annapolis, April 21, strength- 
ened as it was by a letter of advice from Washington to 
Thomas Johnson,^ it was found that the plan of a confeder- 
acy of slaveholding states had not a single supporter. Despite 
the ravings of Samuel Chase and the intrigues of William 
Paca, the malcontents were silenced and the Constitution rati- 
fied on the 26th, by sixty-three votes against eleven, Paca vot- 
ing with the majority. Seven of the thirteen had now been 
secured. In his letter of congratulation to Daniel of St. Thomas 
Jenifer, of April 27, Washington said : "Seven affirmative with- 
out a negative would almost convert the unerring sister. The 
fiat of your convention will most assuredly raise the edifice." ' 
The time had now arrived for the state of Charles Pinckney, 
the draftsman of the "system," and of Rutledge, the Chairman 
of the Committee of Detail, to speak. In South Carolina the South Caro- 
anti-federalists of Virginia were still intriguing for a Southern '^ ^^^ ^^' 
Confederacy, while Washington and Madison were as faithful 
as ever in pleading against them for the Union.^ Just before the 
convention was called, a notable scene occurred in the House of 
Representatives when Charles Pinckney graphically described^ Pinckney 
the novel character of "the federal republic" which was to and Lowndes 
operate directly on individuals and not on states as corporate lature. 
persons. When Lowndes,^ the spokesman of the Virginia oppo- 
sition, assailed the clause in the Constitution declaring a treaty 
properly ratified to be the supreme law of the land, Cotes- 
Madison to Jefferson, August 10, » April 27, 1788, MS. 
1788. See Ford's Federalist, xxiii, * Madison to Washington, April 
note. ID, 1788. Works, i, 384, 385. 

» Cohens v. Virginia, 6 Wheat. ^ Elliot, iv, 253-263. 

264. 8 Ibid., iv, 262-265. 

2 April 20, 1788, MS. 



212 



THE AMERICAN CONSTITUTION 



[Ch. 



Convention 
organized 
May 13. 



New Hamp- 
shire rati&ed 
June 21. 



worth Pinckney condemned the reasoning as specious, Rut- 
ledge adding that "every treaty is law paramount and must 
operate," not less under the Confederation than under the Con- 
stitution.^ The summit of absurdity was then reached when 
Lowndes, referring to the Confederation, said: "We are now 
under a most excellent constitution — a blessing from Heaven, 
that has stood the test of time, and given us liberty and inde- 
pendence ; yet we are impatient to pull down that fabric which 
we raised at the expense of our blood." ^ When the convention 
was organized on May 13,^ with Thomas Pinckney, then 
governor, as president, Sumter, the leader of the malcontents, 
put to the test the strength of those who desired to act with 
the Virginia opposition by moving, on the 21st, for an adjourn- 
ment for five months.* After that motion had been decisively 
defeated, the Constitution was ratified on the 23d by one hun- 
dred and forty-nine votes against seventy-three — more than 
two to one.^ Five days later, when the ninth state had yet to 
speak, Washington wrote to Lafayette: ^ "The plot thickens 
fast. A few short weeks will determine the political fate of 
America for the present generation, and probably produce no 
small influence on the happiness of society through a long 
succession of ages to come." The "few short weeks" were to 
be only three in number. On June 21, New Hampshire, which 
had adjourned her convention to await the action of Massa- 
chusetts, followed her example, thus making the ninth state 
necessary "for the establishment of this Constitution between 
the states so ratifying the same." The fact was carefully 
inserted in the record that the vote of fifty-seven against forty- 
six was taken on Saturday, June 21, at one o'clock in the after- 
noon, so as to preclude the possibility of the honor of giving life 
to the new system being claimed by any other state ratifying 
at a later hour of the same day.^ And here it may not be amiss 
to note that among the strenuous opponents of the Con- 
stitution in New Hampshire was Captain Ebenezer Webster, 
the father of one destined to be its mighty expounder and 
defender. 



1 Elliot, iv, 267-268. 

* Ibid., iv, 271, 272. 
» Ibid., iv, 318. 

* Ibid., iv, 338. 

* Ibid., iv, 338-340- 



« May 28, 1788, MS. 

'' Tobias Lear to Washington, 
June 22, 1788; Letters to Washington, 
iv, 225. 



VII.] THE FEDERAL CONVENTION AND ITS WORK 213 

The debate in the convention of Virginia, which assembled Virginia, 
at Richmond on June 2 under the presidency of Pendleton, was ^ ^^' 
terminated on the 25th by Randolph, who in closing said: 
"The accession of eight states reduces our deliberations to the 
single question of union or no union." Thus it appears that 
the deliberations of the great state that had done so much to 
bring the Federal Convention into being ended in ignorance of 
the fact that the honor of vitalizing its work had been seized by 
New Hampshire. Without the advantage that must have fol- 
lowed the knowledge of assured success, the influence of Wash- 
ington was to be tested in his stronghold by the eloquence and 
craft of a coalition led by Patrick Henry, Richard Henry Lee, 
George Mason, John Tyler, Zachariah Johnson, Benjamin 
Harrison, and Grayson, feebly supported by Monroe. The 
strength of the opposition had, however, been seriously weak- 
ened in advance by South Carolina's crushing blow to the Opposition 
scheme for a Southern Confederacy, the confident anticipation weakened by 

f 1 • 1 1 TTT 1 • T»/r !• , act of South 

of which event prompted Washmgton to assure Madison that Carolina. 

"the eloquence of eight affirmatives for the Constitution ought 
to cause even 'the unerring sister' to hesitate." ^ To that vic- 
tory Washington added the conversion of Governor Randolph, 
then at the height of his power and popularity. ^ Thus menaced, 
the malcontents, following the example of Massachusetts, 
resolved to make no test of strength until the Constitution had 
been discussed clause by clause. While even Richard Henry- 
Lee was inclined to be more reasonable, Patrick Henry, whose Patrick Henry, 
"plans extended contingently even to foreign alliances," ^ was 
defiant. His boast was that "the other states cannot do with- 
out Virginia, and we can dictate to them what terms we please." 
In that temper he forced the fight, declaring that "the Con- 
stitution is the severance of the Confederacy. Its language, 
*We the people,' is the institution of one great consolidated 
national government of the people of all the states, instead of 
a government by compact with the states for its agents. The 
people gave the Convention no power to use their name." - 
After George Mason had supported him by saying that "the George Mason. 

^ Washington to Madison, May 2, ' Carrington to Madison, Jan. 18, 

1788, MS. 1788, MS. 

* See Washington to Edmund * Elliot, iii, 23. 

Randolph, Jan. 8, 1788. Sparks, ix, 
297. 



214 



THE AMERICAN CONSTITUTION 



ICh. 



power of laying direct taxes changed the Confederation. The 
general government being paramount and more powerful, the 
state governments must give way to it ; and a general consol- 
idated government is one of the worst curses that can befall 

Pendleton, a nation," ^ Pendleton retorted that "there is no quarrel be- 
tween government and liberty; the former is the shield and 
protector of the latter. The expression 'We the people' is a 
common one, and with me it is a favorite. Who but the people 
can delegate powers, or have a right to form a government?" ^ 

Randolph. And to that Randolph added that "the question is now be- 
tween union and no union, and I would sooner lop off my right 
arm than consent to a dissolution of the union." ^ When 
Henry in eulogizing the English Constitution said : " In the Brit- 
ish Government the sword and purse are not united in the same 
hands, in this system they are. Does not infinite security 

Madison. result from a separation? " * Madison answered : "There never 

was, there never will be, an efficient government in which both 
the sword and purse are not vested, though they may not be 
given to the same member of the government. The sword is in 
the hands of the British King; the purse is in the hands of the 
Parliament. It is so in America, as far as any analogy can 
exist." ^ It was, however, against the federal judicial system 
that Henry directed his bitterest invectives. He charged it 
with an attempt to abolish trial by jury; with menacing 
debtors by the clause against the impairment of the obligation 
of contracts ; with endangering the state courts by the number 
of its tribunals armed with appellate jurisdictions, and with 
the right to hear controversies between a state and the citizens 

Marshall. of another state. Marshall, who was to breathe the breath of 

life into that system and make it what it is to-day, spoke his first 
words in its favor in a masterly oration in which he said: "A 
suit instituted in the federal courts by the citizens of one state 
against the citizens of another state will be instituted in the 
court where the defendant resides, and will be determined by 
the laws of the state where the contract was made. The laws 
which govern the contract at its formation govern it at its deci- 
sion. Whether this man or that man succeeds is to the govern- 



Federal 

judiciary 

assailed. 



* Elliot, Hi, 29-33. 

* Ibid., iii, 35-41. 
' Ibid., iii, 25, 26. 



* Ibid., iii, 387, 388. 
» Ibid., iii, 393-395. 



VII.] THE FEDERAL CONVENTION AND ITS WORK 215 

ment all one thing. Congress is empowered to make exceptions 
to the appellate jurisdiction of the Supreme Court, both as to 
law and as to fact ; and these exceptions certainly go as far as the 
legislature may think proper for the interest and liberty of 
the people." ^ Henry's purpose was to excite the fears of the 
Virginia planters, who owed ten millions of dollars to British Appeal to 
merchants, whose right to sue in the courts of Virginia had been deMore^ 
suspended by the legislature largely through his influence. 
When proceeding on that line he assailed the new Constitution 
for granting in that matter retrospective jurisdiction, Marshall 
answered that "there is a difference between a tribunal which 
shall give effect to an existing right and creating a right that 
did not exist before. The debt or claim is created by the indi- 
vidual ; a creation of a new court does not amount to a retro- 
spective law." ^ After Henry had delivered himself on the 
prospect for separate confederacies,^ the hope of which South 
Carolina had blighted, after Mason, Madison, and Tyler had 
spoken on the slave trade, which the last-named denounced as 
"this wicked traffic," ^ after Henry had raised a new cry as to 
the dangers of emancipation, after Johnson had complained 
that the bill of rights prepared by the Convention as an amend- 
ment to the Constitution did not acknowledge that all men are 
by nature free and independent, after it was alleged that the 
adoption of the Constitution would result in the renunciation 
by the new government of the right to navigate the Mississippi, 
after Tyler had mourned over his concession of the right to 
regulate commerce, after the minds of the debtor class had 
been filled with anxiety as to the effect of the prohibition on 
the states to issue paper money, — Henry, still defiant, cried Henry's defiant 
out: "Old as I am, it is probable I may yet have the appellation outcry. 
of rebel. But my neighbors will protect me." ^ After he had 
been pacified, for his nature was genial, he finally said on the 
last day, " If I shall be in the minority, I shall yet be a peace- 
able citizen, my head, my hand, and my heart being at liberty 
to remove the defects of the system in a constitutional way." ^ 
The steadfast spokesman of Washington had won the day. The 

* Elliot, iii, 556, 557, 558. a country as this, small confederacies 

' Ibid., iii, 539, 546, 561. are little evils." Ibid., iii, 161. 
' He said: "Compared with the * Ibid., iii, 454, 455. 

consolidation of one power to reign * Ibid., iii, 546. 

with a strong hand over so extensive * Ibid., iii, 652. 



2l6 



THE AMERICAN CONSTITUTION 



ICh. 



Unconditional 
ratification. 



New York 
ratified 
July 26. 



The " Federal 
Farmer." 



patient, the patriotic, the resourceful Madison, supported as 
he was by Randolph, Marshall, Pendleton, Nicholas, Innes, 
Corbin, and Henry Lee, saved the fame of the " unerring sister " 
at a moment when its peril was great indeed. After the dangers 
incident to a conditional ratification were passed, the roll was 
called on June 25, upon which eighty-nine delegates voted 
for the Constitution, while seventy-nine declared against it. 
Thus by a narrow margin the greatest of the states was rescued 
from a suicidal policy whose success would have resulted in the 
destruction of the Union; and in the creation of a series of 
impotent confederacies. The unconditional ratification, which 
referred all amendments to the First Congress under the 
Constitution, was attended with "a. few declaratory truths 
not affecting the validity of the act." ^ 

Madison was no more faithful or helpful to the cause in 
Virginia than was Hamilton in New York. So long as the Con- 
stitution was in peril, these master builders were united by a 
oneness of purpose which imparted to their relations the charm 
of intimacy and affection. The influence of "The Federalist," 
which Hamilton had designed as a means of preparing the 
people for the acceptance of the great invention, was met by 
inflammatory tracts and letters from the" Federal Farmer," by 
Richard Henry Lee, circulated through the federal republicans, 
whose electioneering centre was the custom-house, then a state 
institution at New York. A committee of correspondence was 
formed with branches throughout the country, which drew 
answers from many who were willing to denounce the new Con- 
stitution as "an elective despotism." Back of that opposition 
was Governor Clinton, whose unpatriotic policy had, at a crit- 
ical moment, withdrawn Yates and Lansing from the Conven- 
tion, he declaring unreservedly at the time that no good was to 
be expected from the proceedings at Philadelphia.^ In that 
hostile spirit the governor, at the regular meeting of the legis- 
lature in January, 1788, while recommending the encourage- 
ment of manufactures and commerce, sent in the proceedings 
of the Federal Convention without a word.' However, upon the 

^ Madison to Washington, in people of the United States and at 

Rives, ii, 608. The rights of the their will." Elliot, iii, 656. 

states were guarded by the assertion ^ Penn. Packet, 26th July, 1787. 

"that every power not granted by ' Ind. Gazetteer, Jan. 19, 1788. 
the Constitution remains for the 



VII.] THE FEDERAL CONVENTION AND ITS WORK 21 7 

motion of Benson, a convention was ordered which met at. Convention 
Poughkeepsie June 17, under the presidency of CUnton, who ^gpsie, °"^ " 
was supported by Yates and Lansing, Samuel Jones, an emin- June 17. 
ent member of the New York Bar, and Melancthon Smith, a 
man of religious temper who is said to have been gifted with 
the power of moderation. That group was confronted by 
Hamilton, Jay, Livingston, then chancellor of the state, Chief 
Justice Morris, Hobart, and Duane. When, on the 19th, 
Livingston opened the debate, after demonstrating the advant- Debate 
ages of a composite state over a mere league, he asserted that L^vklgston. 
without a strong federal government New York was incapable 
of self-defense, surrounded as she was with British posts within 
her limits capable of forming connections with hostile Indian 
tribes whereby the city might be held in defiance of treaties.* 
After Lansing and Melancthon Smith had discharged their 
artillery, Hamilton was cheered on the 24th by tidings brought 
by swift riders that New Hampshire as the ninth state had 
ratified the Constitution. But Clinton still stood undaunted, 
denouncing his opponents as "the advocates of despotism," 
notably Hamilton, who "had in substance, though not ex- 
plicitly, thrown off the mask, his arguments tending to show 
the necessity of a consolidated continental government to the 
exclusion of any state government." Thus beset, Hamilton Hanulton. 
wrote to Madison, saying, " Our chance of success depends upon 
you. Symptoms of relaxation in some of the leaders authorize 
a gleam of hope if you do well, but certainly I think not other- 
wise." ^ On the very next day the Virginia Convention acted 
favorably, but it was not until July 3 that the assembly at 
Poughkeepsie, while still considering the Constitution and pro- 
posed amendments, received the glad tidings of the uncon- 
ditional ratification. From that time the only question was 
whether or no New York would so ratify. On the loth Lansing Bill of Rights 
offered a bill of rights to which no one objected, but with it he ° ^^^ ' 
coupled numerous amendments ^ which were made conditions 
of ratification; and on the next day Melancthon Smith added a 
resolution which proposed in substance that New York would 
join the Union, reserving the right to withdraw from it if the 
proposed amendments were not accepted.^ In the midst of 

1 Elliot, ii, 208-216. ' Penn. Packet, July 18, 1788. 

^ Hamilton's Works, i, 462. * For Hamilton's crushing speech 



2l8 



THE AMERICAN CONSTITUTION 



[Ch. 



Madison's 
letter. 



Hamilton's 
triumph. 



North Caro- 
lina ratified 
November 21, 
1789. 



that new peril Hamilton appealed to Madison, who had 
returned to Philadelphia; and on the 21st, he was able to read 
to the convention the answer in which he said : " My opinion is, 
that a reservation of a right to withdraw, if amendments be not 
decided on under the form of the Constitution within a certain 
time, is a conditional ratification; that it does not make New 
York a member of the new Union, and, consequently, that she 
could not be received on that plan. The Constitution requires 
an adoption in toto and forever." ^ Under the pressure of that 
opinion from Madison it was resolved that New York, follow- 
ing in the footsteps of Massachusetts, would be content with 
the declaration of Hancock, and make no conditions, and thus 
ratify "in full confidence" of the adoption of all necessary 
amendments. Not, however, until it was agreed unanimously 
that a circular letter should be laid before the different legisla- 
tures recommending a general convention to act upon all pro- 
posed amendments, was that step finally taken on the 26th, by 
a vote of thirty against twenty-seven. It is comforting to know 
that in the midst of the unbounded enthusiasm that pervaded 
every class as the citizens of New York marched in a proces- 
sion of unparalleled splendor, homage was paid to the victor in 
the form of a miniature ship drawn through the streets bearing 
the name of Hamilton. If Madison and Charles Pinckney did 
more to force "the new system" through the Federal Conven- 
tion, neither surpassed him, either in zeal or efficiency, when 
the time came to secure its ratification by the state conventions 
that gave it their approval. 

Not until November 21, 1789, sometime after the new gov- 
ernment was in motion, did North Carolina come into the 
Union. Her convention had assembled at Hillsboro as early as 
July 21, 1788, under the presidency of Johnson, then governor, 
the dominating intellectual force being James Iredell, after- 
ward appointed to the Supreme Bench of the United States, 
who was ably supported by William R. Davie, Samuel John- 
son, Richard Dobbs Spaight, and Archibald Maclaine. For 
a long time there was doubt and hesitation. Willie Jones, who 
controlled the majority, said: "We do not determine on the 
Constitution; we neither reject nor adopt it; we leave ourselves 



of the 19th against that proposal, 
see Works, ii, 467-471. 



* Hamilton's Works, i, 465. 



VIL] THE FEDERAL CONVENTION AND ITS WORK 219 

at liberty ; there is no doubt we shall obtain our amendments 

and come into the Union." ^ Not until properly assured on that 

point did North Carolina finally withdraw all opposition and 

ratify at Fayetteville at the time stated. On May 29, 1790, 

Rhode Island, the only state that did not participate in the Rhode island, 

proceedings at Philadelphia, after forcing the call of a conven- ^^^ ^^' ^'9°- 

tion by an accidental majority of one,^ yielded to the fear of 

remaining in isolation, and, at the eleventh hour, bowed to 

the inevitable. 

Thus ended in triumph the great drama in the history of 
humanity that opened with the invention of the "wholly 
novel theory," February 16, 1783, and closed with its final 
acceptance as a working system of government by the last of 
the thirteen states, May 29, 1790. Its first act was one of Summary. 
creation proceeding from a single mind that wrought a revolu- 
tion in political science by making an entirely new combina- 
tion of political principles without a prototype in history. Its 
second act was one of adaptation proceeding from an organized 
body of marvelous men, at once so scientific and so practical 
as to be able to readjust a novel and highly complex political 
theory and then apply it as a working system of government 
under the most difficult of all circumstances. Its third act 
was one of coercion proceeding from the combined pressure of 
a set of compelling conditions backed by the driving force of an 
almost irresistible personality intent upon saving the states 
from anarchy by subjecting them to the common yoke of an 
equitable and indestructible union. The intellectual side of 
the movement finds its source in a man of contemplation, who 
worked behind a curtain which, until now, has almost concealed 
him from the view of the world. The material and political 
side of the movement finds its driving force in the Titanic 
form of a man of action, who, without effort, impressed all 
mankind from the outset with the grandeur of his achieve- 
ments. Such is the relation in which Pelatiah Webster stands 
to Washington. 

^ In the mean time it was agreed ' How that was accomplished is 

that any impost Congress might told in a letter from Rhode Island 

impose should be collected in North published in the New York Packet, 

Carolina by the state "for the use February 20, 1790. See Andrews, 

of Congress." See Bancroft, ii, 349- History of the United States, i, 

350. 240. 



220 



THE AMERICAN CONSTITUTION 



[Ch. 



Congress noti- 
fied of action 
of nine states, 
July 2, 1788. 



Choice of 
electors 
ordered Sep- 
tember 13. 



Votes for 
President and 
Vice-President 
counted 
April 6. 



Washington 
became seat 
of government, 
1800. 



By a resolution of the Federal Convention it was provided 
that each state convention, assenting to or ratifying the new 
Constitution, "should give notice thereof to the United States 
in Congress assembled." As early as July 2, 1788, Congress was 
thus notified that the Constitution had received the approval 
of nine states. Not, however, until more than two months had 
been wasted in a contention as to the permanent seat of the 
new government, fixed temporarily at New York, did Congress, 
on September 13, set the first Wednesday in January, 1789, 
for the choice of electors of President in the several states, the 
first in February for their ballot, and the first in March for the 
commencement of proceedings under the new system. As the 
first Wednesday in March, 1789, was the 4th, that date has 
since been retained as the initial one for congresses and pre- 
sidencies. In deference to the dilatory practice of the past 
there was no quorum in either branch of the First Congress 
on March 4. When on April 6 the Senate chose John Langdon 
as its president, the House of Representatives, which had 
formed its quorum on April i, was immediately summoned, 
and in the presence of the two houses he opened and counted the 
votes, every one of the sixty-nine, cast by the ten states that 
took part in the election, being for Washington. As John Adams 
had thirty-four votes, no other obtaining more than nine, he was 
declared Vice-President. After casting upon the Senate the 
duty of notifying the chosen ones of their election, the House 
proceeded to business. The strangest, the most unique of all 
political crafts was now under way, with the greatest of all 
pilots at the prow. After holding its first session at New York, 
the First Congress on December 6, 1790, removed to Phil- 
adelphia, chosen by the Act of July 16, 1790, as the temporary 
seat of government. There Congress remained until the second 
session of the Sixth (1800), when under the Act approved 
April 24. ^ of that year the President was authorized to direct 
the removal of the various executive departments to the city 
of Washington at any time after the adjournment of the first 
session of the Sixth Congress and before the time fixed by the 
Act of July 16, 1790,* for the transfer of the seat of government 



> 2 Stats. 557. 

* By that act it was provided 
"that on the said first Monday in 



December, in the year one thousand 
eight hundred, the seat of the Gov- 
ernment of the United States shall. 



VII.] THE FEDERAL CONVENTION AND ITS WORK 221 

to that place. On the day of the first meeting of the Supreme 
Court in the permanent capitol of the nation, February 4, 
1801, Marshall took his place for the first time as Chief Just- 
ice, and as such he sat in the midst of six associates, for thirty- 
four years. 

by virtue of this act, be transferred tion of the District selected for the 
to the District and place aforesaid," federal city, 
the place referred to being the per- 



CHAPTER VIII 



THE FIRST TWELVE ARTICLES OF AMENDMENT 



New Constitu- 
tion not pre- 
faced by a bill 
of rights. 



Lack supplied 
by a series of 
amendments 
proposed by 
the states. 



Varying in- 
terpretation 
of Magna 
Carta. 



The position of those who opposed the adoption of the new 
Constitution because it was not prefaced by a bill of rights was 
neither factious nor unreasonable. When the new state con- 
stitutions came into existence, the tendency was general to 
preface them with bills of rights in which were epitomized, as 
explained heretofore,^ all of the seminal principles of the Eng- 
lish Constitution for the protection of the citizen against the 
Crown, as those principles had been re-defined in the glorious 
Revolutions of 1640 and 1688. At the base of that body of 
protective constitutional law was that part of Magna Carta 
(chapter 39) out of which grew the modern conception of "due 
process of law." As the Supreme Court has expressed it: 
"The equivalent of the phrase 'due process of law,' according 
to Lord Coke, is found in the words 'law of the land,' in the 
Great Charter, in connection with the writ of habeas corpus, 
the trial by jury, and other guaranties of the rights of the sub- 
ject against the oppression of the Crown. In the series of 
amendments to the Constitution of the United States, pro- 
posed and adopted immediately after the organization of the 
government, which were dictated by the jealousy of the states 
as further limitations upon the power of the Federal Govern- 
ment, it is found in the Fifth, in connection with other guar- 
anties of personal rights of the same character. Among those 
are protection against prosecutions for crimes, unless sanc- 
tioned by a grand jury; against being twice tried for the same 
offense; against the accused being compelled, in a criminal 
case, to testify against himself; and against taking private 
property for public use without just compensation." ^ Magna 
Carta as "a sacred text, the nearest approach to a 'funda- 
mental statute' that England has ever had," ^ was interpreted 



* See above, p. 76 sq. 

* Davidson v. New Orleans, 96 
U.S. 97. 



' Pollock and Maitland, Hist, of 
Eng. Law, 2d ed., i, 173. 



VIIL] THE FIRST TWELVE ARTICLES OF AMENDMENT 223 

in each age according to the necessities of the times. With the 
broad construction put upon it by the statesmen and lawyers 
of the seventeenth century during the constitutional struggles 
with the Stuarts, which construction became fixed in the com- 
mentaries of Coke and Blackstone, it became at the close of 
the American Revolution the corner-stone of American consti- 
tutional law.^ Upon that base were superimposed the more 
modern principles defined during the Revolutions of 1640 and Supplemented 
1688, and embodied in the Acts of the Long Parliament (1640- pfjjj^^p'j^^ 
1641), the Petition of Right (1628), the Habeas Corpus Act 
(1679), the Bill of Rights (1689), and the Act of Settlement 
(i7CX)-i70i),2 which Hallam has characterized as "the seal of 
our constitutional laws, the complement of the Revolution 
itself and the Bill of Rights, and the last great statute which 
restrains the power of the Crown." ' Out of England's funda- 
mental statutes were fabricated the bills of rights by which the 
first state constitutions were prefaced, and out of those bills of 
rights were coined the first nine amendments to the Constitu- 
tion of the United States. 

In the Federal Convention, Randolph, "animadverting on Randolph and 
the indefinite and dangerous power given by the Constitution amradnie™ts" 
to Congress, expressing the pain he felt at differing from the 
body of the Convention on the close of the great and awful 
subject of their labors, and anxiously wishing for some ac- 
commodating expedient which would relieve him from his em- 
barrassments, made a motion importing ' that amendments to 
the plan might be offered by the state conventions, which should 
be submitted to, and finally decided on by, another general 
convention.' " * Gerry then said that he could get over all his 
difficulties "if the rights of the citizens were not rendered 
insecure — first, by the general power of the legislature to 
make what laws they may please to call ' necessary and proper ' ; 
secondly, to raise armies and money without limit ; thirdly, to 
establish a tribunal without juries, which will be a Star Cham- 
ber as to civil cases. Under such a view of the Constitution, 
the best that could be done, he conceived, was to provide for 
a second general convention. " ^ While all the states answered 

^ See above, p. 76. » Const. Hist., Hi, 196. 

* Cf. The Origin and Growth of the * Madison Papers, iii, 1593. 
Eng. Const., ii, 308; 268; 380; 414. ^ ibid., iii, 1595. 



224 



THE AMERICAN CONSTITUTION 



[Ch. 



Fears of Pela- 
tiah Webster. 



Lee's demand 
for a bill of 
rights. 



no to that proposal, the conviction lingered that certain 
amendments limiting the sovereign powers of the new system, 
especially the legislative power, should be promptly adopted. 
Pelatiah Webster was evidently oppressed by the fears ex- 
pressed by Randolph and Gerry, when he said with solemn 
emphasis: "But now the great and most difficult part of this 
weighty subject remains to be considered, viz., how these 
supreme powers are to be constituted in such manner that they 
may be able to exercise with full force and effect the vast 
authorities committed to them, for the good and well-being 
of the United States, and yet be so checked and restrained 
from exercising them to the injury and ruin of the states, that 
we may with safety trust them with a commission of such vast 
magnitude — and may Almighty Wisdom direct my pen in this 
arduous discussion." As stated heretofore he proposed to meet 
the difficulty by a provision "that the powers of Congress, 
and all the other departments, acting under them, shall all be 
restricted to such matters only of general necessity and 
utility to all the states as cannot come within the jurisdiction 
of any particular state, or to which the authority of any par- 
ticular state is not competent: so that each particular state 
shall enjoy all sovereignty and supreme authority to all in- 
tents and purposes, excepting only those high authorities and 
powers by them delegated to Congress, for the purposes of the 
general Union." As the Convention did not see fit so to limit 
the powers of the new system it is very natural that an obstruc- 
tionist like Lee should have contended, after the submission 
of it to Congress in September, that it should be restrained 
by a bill of rights, with provisions relating to the freedom of 
speech and the press, to the rights of conscience, to trial by 
jury in civil cases as well as criminal, to freedom of elections, 
to the prohibition of standing armies, to the independence of 
the judges, to security against excessive bail, fines, or punish- 
ments, to unreasonable searches or seizures of persons, houses, 
papers, and property, and to the right of petition.^ After 
Congress had acted adversely on Lee's suggestion, the subject 

* "Where," said Lee, "is the rights of the people who are gov- 

contract between the nation and erned." Minister Otto to Count 

the government? The Constitution Montmorin, New York, Oct. 23, 

makes no mention but of those who 1787. Bancroft, ii, 227. 
govern, and never speaks of the 



VIII.] THE FIRST^ TWELVE ARTICLES OF AMENDMENT 225 

of amendments was renewed with vigor in the several state Subject of 
conventions to which the Constitution was referred. As amendments m 

. , state conven- 

stated heretofore, a happy solution was offered by the con- tions. 
vention of Massachusetts, which agreed unconditionally, in 
the words of Hancock, "to the Constitution, in full confidence 
that the amendments proposed will soon become a part of the 
system. The people of this commonwealth will quietly acqui- 
esce in the voice of the majority, and, where they see a want 
of perfection in the proposed form of government, endeavor, 
in a constitutional way, to have it amended." ^ Before Han- 
cock made that statement, amendments had been offered by 
himself and others, — one set embracing the general declara- The Massachu- 
tion which reserved to the states or the people the powers not setts precedent, 
delegated to the United States; another embodying certain 
restraints upon the powers granted to Congress with respect 
to direct taxes, elections, the commercial power, the juris- 
diction of the courts, and to the holding of titles or offices 
conferred by foreign sovereigns; while a third related to the 
presentment by a grand jury for crimes by which an infamous 
or a capital punishment might be inflicted, and to trial by jury 
in civil actions at common law between citizens of different 
states. Madison promptly adopted and commended the policy Commended 
of Massachusetts. Writing to Randolph on April 10, 1788, by Madison. 
he said: "A conditickial ratification or a second convention 
appears to me utterly irreconcilable with the dictates of 
prudence and safety. Recommendatory alterations are the 
only ground for a coalition among the real FederaUsts." ^ Upon 
that basis the state conventions ratified unconditionally, with 
the tacit understanding that a bill of rights would be offered to 
the states by the First Congress in the form of amendments 
to be adopted in the mode prescribed by the new Constitution. 

Into the First Congress, organized for business April 6, Composition 
1789, were introduced 189 bills, 46 in the Senate and 143 in °*F"^t 
the House. Into the Sixtieth Congress the total number intro- 
duced was about 40,000. The House committees of the First 
Congress were elected by the House itself. During the Second 
they were sometimes elected and sometimes appointed. Not 
until the Fourth did the exclusive power of appointment pass 

^ See above, p. 210. 

* Madison's Works, i, 386, and 376-379. 



226 



THE AMERICAN CONSTITUTION 



[Ch. 



Organization 
of the judi- 
ciary. 



into the Speaker's hands. From that time onward the growth 
of his powers represents an evolution whose advance synchron- 
izes with the growth of the business of the House. ^ Among 
those who passed from the Federal Convention to the new 
Congress may be mentioned Langdon of New Hampshire, 
Ellsworth and Johnson of Connecticut, Rufus King of New 
York, Robert Morris of Pennsylvania, Gouverneur Morris, 
then of New York, Caleb Strong of Massachusetts, Paterson 
of New Jersey, Dickinson and Bassett of Delaware, Alexander 
Martin and Blount of North Carolina, Charles Pinckney and 
Butler of South Carolina, and Colonel Few of Georgia, all of 
whom became Senators. The following became members of 
the House of Representatives: Madison of Virginia, Sherman 
of Connecticut, Gilman of New Hampshire, Baldwin of 
Georgia, Dayton of New Jersey, Gerry of Massachusetts, 
Fitzsimons of Pennsylvania, Carroll of Maryland, and 
Spaight and Williamson of North Carolina.'^ In order to put 
the new judicial machinery in motion it was necessary for the 
First Congress to enact the famous Judiciary Act of 1789. 
"That great act was penned by Oliver Ellsworth, a member of 
the Convention which framed the Constitution, and one of the 
early Chief Justices of this Court. It may be said to reflect 
the views of the founders of the Republic as to the proper re- 
lations between the federal and state courts." ^ After provid- 
ing for the organization of the Supreme Court, the Judiciary 
Act, in order further to vitalize the grant of judicial power 
contained in the Constitution, created thirteen primary 
courts, known as District Courts, with exclusive jurisdiction 
of certain crimes described in the Act, of all civil cases of 
admiralty and maritime jurisdiction, and of all suits for penal- 
ties and forfeitures incurred under the laws of the United 
District Courts. States. To the District Courts was also given jurisdiction, 
concurrently with the courts of the several states, or the Circuit 
Courts, as the case may be, of certain cases arising under the 
law of nations, or treaties, of certain suits at common law where 
the United States is plaintiff, and of certain suits exclusive 

* See the author's article on " The Gilman, and Baldwin were promoted 
Speaker and his Powers," in North to the Senate. 

Am. Review for October, 1908. * Mr. Justice Field, in Virginia v. 

* Cf. Andrews, History of the Rives, 100 U. S. 338. 
United States, i, 236-237. Sherman, 



Supreme 
Court. 



VIII.] THE FIRST TWELVE ARTICLES OF AMENDMENT 227 

of the courts of the several states, against consuls or vice- 
consuls. The districts, excepting those of Maine and Ken- 
tucky, were, at the outset, grouped in three circuits, the east- 
ern, middle, and southern ; and it was provided that there should 
be held annually in each district of said circuits, two courts, 
which should be called Circuit Courts, and should consist of 
any two justices of the Supreme Court, and the district judges 
of such districts. The Circuit Courts thus created were endowed Circuit Courts, 
with original cognizance — concurrently with the courts of the 
several states — of certain cases, with exclusive cognizance of 
certain crimes and offenses against the United States, and with 
jurisdiction — concurrently with the District Courts — of cer- 
tain other crimes defined in the Act. In the Circuit Courts was 
also vested appellate jurisdiction over the District Courts, 
"under the regulations and restrictions hereinafter provided." 
To the Supreme Court of the United States was likewise given 
" appellate jurisdiction from the Circuit Courts and courts of the 
several states, in the cases hereinafter specially provided for." ^ 

While Ellsworth thus wrought in the judicial order, Madison Madison 
undertook the preparation of the bill of rights promised by the ^^^ ^^^ 
friends of the new Constitution as an inducement to its adop- 
tion. By common consent the leadership of the House seems 
to have been conceded to Madison by reason of his ability, of 
his thorough familiarity with the new Constitution, and of his 
methodical habits. Under his business management every- 
thing was brought forward in its proper order. After facilitat- 
ing the passage of an impost bill to provide necessary revenue, 
he was active in organizing the administrative machinery Administrative 
indispensable to its appropriation. Resolutions to create the ™^^^»°^'y- 
departments of Foreign Affairs, of the Treasury, and of War 
were offered by Madison, — the principle of removability by 
the President, with regard to the heads of departments, being 
incorporated as to all of them. During the same Congress an 
act was passed adding additional duties, relating to domestic 
administration, to the Department of Foreign Affairs, hence- 
forth to be known as the " Department of State," whose prin- 
cipal officer was designated as the "Secretary of State." 
With these preliminary matters disposed of, Madison deemed 

1 Cf . Taylor, Jurisdiction and Procedure of the Supreme Court of the United 
States, 20-23. 



228 



THE AMERICAN CONSTITUTION 



[Ch. 



Twelve 
amendments 
offered June 8, 
1789. 



A Declaration 
of Rights. 



Ten amend- 
ments adopted. 



it his duty to direct the attention of Congress to the import- 
ance of removing, by a wise exercise of the power of amend- 
ment, the honest doubts and apprehensions existing with re- 
gard to the security of the rights of the people under the new 
system. He took the first step on June 8, when he introduced 
a series of propositions, offering the desired guarantees, in the 
form of twelve amendments. "It appears to me," he said, 
"that this House is bound, by every motive of prudence, not 
to let their first session pass over, without proposing to the 
state legislatures something to be incorporated into the Con- 
stitution, that will render it as acceptable to the whole people 
of the United States as it has been found to be to a major- 
ity of them. It will be desirable to extinguish from the bosom 
of every member of the community any apprehensions, that 
there are those among his countrymen who wish to deprive 
them of the liberty for which they valiantly fought and freely 
bled. And if there are amendments desired of such a nature as 
will not injure the Constitution, and they can be engrafted 
so as to give satisfaction to the doubting part of our fellow 
citizens, the friends of the Federal Government, by yielding 
them, will evince that spirit of deference and concession for 
which they have been hitherto distinguished." In the words 
of Rives, "The amendments proposed by Mr. Madison were, 
therefore, mainly in the nature of a Declaration of Rights, 
placing the freedom of speech, the freedom of the press, freedom 
of religion, the security of property, personal liberty, trial 
by jury, and in general every right and power of the people 
not delegated or surrendered, under the aegis of the Constitu- 
tion, and by an express interdiction, beyond the reach of the 
Government." ^ The amendments, finally agreed to after pro- 
longed discussion, were essentially those which Madison pro- 
posed, and in due time ten of them were ratified by the states. 
Of the two that were rejected one was designed to secure a 
fuller representation of the people at the outset of the govern- 
ment, the other to restrain Congress from voting themselves 
an increase of compensation to take effect during the current 
term of representative service. Madison's commendable effort 
did not succeed, however, without sharp opposition from 
Sherman, Vining, Smith of South Carolina, and Jackson of 
^ Rives, The Life and Times of James Madison, ii, 38-46. 



VIII.l THE FIRST TWELVE ARTICLES OF AMENDMENT 229 

Georgia. The last named went so far as to declare that "our 
instability will make us objects of scorn; not content with two 
revolutions in less than fourteen years, we must enter upon 
a third." Congress prefaced its resolutions, proposing amend- 
ments to the Constitution, — twelve in number, — with this 
preamble: "The conventions of a number of the states having Preamble. 
at the time of their adopting the Constitution expressed a 
desire, in order to prevent misconstruction or abuse of its 
powers, that further declaratory and restrictive clauses should 
be added, and as extending the ground of pubHc confidence 
in the Government will best insure the beneficent ends of its 
institution," etc. Thus the fact was fixed in the record that 
the proposed amendments were intended simply to prevent 
misconstruction or abuse of powers by declaratory and re- 
strictive limitations. It has been settled from the outset by 
a long list of authorities that the ten amendments actually 
adopted are to be regarded as limitations on the powers of the 
Federal Government and not upon the powers of the states.^ 
The first ten amendments were proposed to the legislatures of 
the several states by the First Congress, on September 25, Proposed to 
1789; and they were ratified by the following states, and the 5^*^^ 2 
notifications of ratification by the governors thereof were suc- 
cessively communicated by the President to Congress in the 
following order: New Jersey, November 20, 1789; Maryland, 
December 19, 1789; North Carolina, December 22, 1789; South 
Carolina, January 19, 1790; New Hampshire, January 25, 
1790; Delaware, January 28, 1790; Pennsylvania, March 10, 
1790; New York, March 27, 1790; Rhode Island, June 15, 
1790; Vermont, November 3, 1791; and Virginia, December 
15, 1 79 1 . There is no evidence on the j ournals of Congress that 
the legislatures of Massachusetts, Connecticut, and Georgia 
ever ratified them. They are entitled " Articles in addition to, 
and amendment of, the Constitution of the United States of 
America, proposed by Congress, and ratified by the legis- 
latures of the several states, pursuant to the Fifth Article of 
the Original Constitution." 

1 Barron p. Baltimore, 7 Pet. 243; 131; Re Sawyer, 124 U. S. 200; 

Fox t». Ohio, 5 How. 410; Twitchell Davis v. Texas, 139 U. S. 651; 

V. Pennsylvania, 7 Wall. 321; McElvaine v. Brush, 142 U. S. 155; 

United States v. Cruikshank, 92 Miller v. Texas, 153 U. S. 153; 

U. S. 542 ; Spies v. IlUnois, 123 U. S. Brown v. New Jersey, 175 U. S. 172. 



230 



THE AMERICAN CONSTITUTION 



ICh. 



Religious 
liberty. 



Mormon 
Church. 



Freedom of 
speech and 
the press. 



Article i provides that "Congress shall make no law re- 
specting an establishment of religion, or prohibiting the free 
exercise thereof; or abridging the freedom of speech, or of the 
press ; or the right of the people peaceably to assemble, and 
to petition the Government for a redress of grievances." The 
founders of the Republic fled from a state church which perse- 
cuted with impartial severity Roman Catholics and Protestant 
non-conformists through two sets of cruel statutes decorated 
on the one hand by the famous Test Act (25 Car. II, c. 2), 
passed "for preventing dangers which may happen from 
Papish recusants," and on the other by the infamous Con- 
venticle Act (16 Car. II, c. 4), whereby every person above 
sixteen years of age present at a conventicle (defined as "any 
meeting for religious worship at which five persons were pre- 
sent besides the household") was subjected to the penalty of 
three months' imprisonment for the first offense, to six for the 
second, and for the third to seven years transportation, after 
conviction by jury. These persecuting statutes were not abol- 
ished in England until very recent times.^ When in 1889 the 
Supreme Court was called upon, in the case of the Mormon 
Church V. United States,^ to pass upon the constitutionality 
of the Act of 1887 disestablishing that church and abrogating 
its charter, it was held to be constitutional, really upon the 
ground that Congress did not possess the right originally to 
establish the church under the Amendment. As the territorial 
legislature derived all its powers from Congress, it could not do 
what its creator could not do. Under such conditions the only 
alternative was the disestablishment of the church, and the 
placing of it, as to the free exercise of its religious views, upon 
the same footing as all other religious societies. But little need 
be said as to the clause forbidding Congress to pass any act 
"abridging the freedom of speech, or of the press," as that 
clause has been removed from the Constitution, so far as the 
mails are concerned, by the judgment rendered in 1892, In re 
Rapier, wherein it was held that Congress possesses the power 
to establish and maintain, as to the contents of the mails, 
an Index Expurgatorius, once vested in the Star Chamber.' 



* Taylor, The Origin and Growth 
of the Eng. Const., ii, 371, 365, 425. 
2 136U.S. i; 130U. S. 145. 



* 143 U. S. no. Great astonish- 
ment was expressed when the Su- 
preme Court announced that start- 



VIII.] THE FIRST TWELVE ARTICLES OF AMENDMENT 231 

By that decision an executive officer of the post office may 
exclude from the mails, without trial by jury, any newspaper 
which contains printed matter regarded by Congress "as 
injurious to the people." When in 1836 President Jackson Jackson's 
attempted to procure the passage of just such an act, forbid- j^^Jgj ^^ 
ding the circulation through the mails of incendiary literature by Webster, 
concerning slavery, it was defeated. Daniel Webster, who 
trampled the proposition under foot in the Senate, said on stat- 
ing the case: "The bill provided that it should not be lawful 
for any deputy postmaster, in any state, territory, or district 
of the United States, knowingly to deliver to any person what- 
ever, any pamphlet, newspaper, handbill, or other printed paper 
or pictorial representation, touching the subject of slavery, 
where, by the laws of said state, district, or territory, their 
circulation was prohibited. . . . Even the Constitution of the 
United States might be prohibited; and the person who was 
clothed with the power to judge in this delicate matter was one 
of the deputy postmasters." In denouncing that monstrous 
proposal, Webster said that "the bill conflicted with that pro- 
vision in the Constitution which prohibited Congress from 
passing any law to abridge the freedom of speech or of the press. 
What was the liberty of the press? he asked. It was liberty of 
printing as well as the liberty of publishing, in all the ordinary 
modes of publication; and was not the circulation of papers 
through the mails an ordinary mode of publication? He was 
afraid that they were in some danger of taking a step in this 
matter that they might hereafter have cause to regret, by its 
being contended that whatever in this bill applies to publica- 
tions touching slavery, applies to other publications that the 
states might think proper to prohibit; and Congress might, 
under this example, be called upon to pass laws to suppress 
the circulation of political, religious, or any other description 
of publications which produced excitement in the states."* 

Webster's worst fears have been realized. By the statute 
involved in the case in question, and others of like character, 
the mails of the United States have been put under a congres- 

ling result in a judgment unsup- to find either authority or adequate 

ported by an opinion. Subsequently reason upon which to rest its judg- 

Chief Justice Fuller filed a very ment. 

brief opinion, which disclosed the ^ Benton, Thirty Years' View, 

fact that the Court had been unable i, 586. 



232 



THE AMERICAN CONSTITUTION 



[Ch. 



Right of 
petition. 



Right to keep 
and bear arms. 



Object of 
Assize 
of Arms. 



sional censorship that may be extended to any subject which 
that body may see fit to add to its Index Expurgatorius. The 
last clause of Article i is simply a restatement of that pro- 
vision of the Bill of Rights (1689) which provides "that it is 
the right of the subject to petition the King, and all commit- 
ments and prosecutions for such petitioning are illegal." * 
So jealous were the Commons of the exercise of the right that 
in 1 70 1 they imprisoned five of the Kentish petitioners until 
the end of the session, for praying the House to attend to the 
voice of the people and turn its loyal addresses into bills of 
supply. In United States v. Cruikshank ^ it was held (i) that 
the First Amendment, which prohibits Congress from abridg- 
ing the right of the people to assemble and to petition the 
Government for a redress of grievances, was not intended to 
limit the powers of the state governments in respect to their 
own citizens, but to operate upon the National Government 
only; (2) that the right of the people peaceably to assemble 
for the purpose of petitioning Congress for a redress of griev-. 
ances, or for anything else connected with the powers or 
duties of the National Government, existed long before the 
adoption of the Constitution as an attribute of national 
citizenship, and, as such, is under the protection of and guar- 
anteed by the United States. 

Article 11 provides that "a well regulated militia, being 
necessary to the security of a free state, the right of the people 
to keep and bear arms, shall not be infringed." The roots of this 
Article strike down into the past until they reach the Assize of 
Arms ^ of Henry H (1181), whereby the old constitutional 
force was reorganized by the duty being imposed upon every 
free man, for the defense of the state, to provide himself with 
arms according to his means. The ancient landfyrd, the 
militia of the shire, survived the Norman Conquest, and its 
aid was more than once invoked in great emergencies by the 
Conqueror and his sons. The object of Henry 's Assize of Arms 
was to reorganize and rearm the ancient force as a body safer 
and more trustworthy for national defense than the feudal 

^ The practice of petitioning on sented to Charles I and to the Long 
political subjects came into use Parliament, 
during the period of the Great Re- ^ 92 U. S. 542. 

bellion. Many petitions were pre- * Hoveden, ii, 261; Benedictus, 

278. 



VIII.] THE FIRST TWELVE ARTICLES OF AMENDMENT 233 

host.^ According to " The Federalist " this limitation indicates 
that the security of liberty against the tyrannical tendencies of 
power is only to be found in the right of the people to keep 
and bear arms with which to resist oppression. In Presser v. Presser v. 
Illinois 2 the Supreme Court — after holding that the pro- °'^' 
vision, that "the right of the people to keep and bear arms 
shall not be infringed," is a limitation only on the powers of 
Congress and the National Government — declared that in 
view of the fact that all citizens capable of bearing arms con- 
stitute the reserved military force of the National Government 
as well as in view of its general powers, the states cannot pro- 
hibit the people from keeping and beariftg arms, so as to deprive 
the United States of their rightful resource for maintaining the 
public security. 

Article iii provides that " no soldier shall, in time of peace, Billeting of 
be quartered in any house, without the consent of the owner, i^bited.^'^^ 
nor in time of war but in a manner to be prescribed by law." 
This prohibition is bifeed on that part of the Petition of Right 
(7th June, 1628) which provides that "whereas of late great 
companies of soldiers and mariners have been dispersed into 
divers cpunties of the realm, and the inhabitants against their 
will have been compelled to receive them into their houses, and 
there to suffer them to sojourn against the laws and custom of 
this realm, and to the great grievance and vexation of the 
people." By Stat. 31 Car. II, c. i, it is enacted that no officer, stat. 31 
military or civil, or other persons, shall quarter or billet any ^^^' ^' ^- ^• 
soldier upon any inhabitant of this realm without his consent, 
and that every such inhabitant may refuse to quarter any 
soldier, notwithstanding any order whatsoever. The" pro- 
visions of that statute and also of the Petition of Right against 
billeting are annually suspended in England by the Mutiny 
Act, which expressly gives permission to billet soldiers at inns 
and victualing-houses. 

Article iv provides that "the right of the people to be General 
secure in their persons, houses, papers, and effects, against 
unreasonable searches and seizures, shall not be violated, and 
no warrants shall issue but upon probable cause, supported by 
oath or affirmation, and particularly describing the place to be 

* The Origin and Growth of the English Constitution, i, 312. 
« 116 U, S. 252. 



warrants 
prohibited. 



234 



THE AMERICAN CONSTITUTION 



[Ch. 



No. 45 of 
North Briton. 



Mansfield' 
judgment. 



searched, and the persons or things to be seized." The motive 
of this Article was to embody in American constitutional law 
the fruits of the victory won in England in 1765, when what are 
known as general warrants were declared illegal. In the effort 
to destroy the freedom of the press, by a strained exercise of 
the prerogative a general warrant was issued in 1763 for the 
discovery and apprehension of the authors and printers (not 
named) of the obnoxious No. 45 of the North Briton, which 
commented in severe and offensive terms on the King's Speech 
at the prorogation of Parliament and upon the unpopular 
Peace of Paris recently (February 10, 1763) concluded.^ Forty- 
nine persons, including Wilkes, were arrested under the general 
warrant; and when it was ascertained that Wilkes was the 
author, an information for libel was filed against him on which 
a verdict was obtained. ^ In suits afterward brought against 
the Under-Secretary of State who had issued the general war- 
rant, Wilkes,^ and Dryden Leach, one of the printers arrested 
on suspicion, obtained verdicts for damages. When the matter 
came before the King's Bench in 1765, Lord Mansfield and the 
other three judges pronounced the general warrant illegal, 
declaring that "no degree of antiquity could give sanction to 
a usage bad in itself."^ When in Boyd v. United States^ an 
attempt was made to enforce a penalty under the customs acts, 
— providing that the prisoner must produce the invoice in 
court for the inspection of the government attorney or else 
be taken to confess the offense, — it was held that such a pro- 
vision was obnoxious to the Article in question because equi- 
valent to compulsory production of papers, and also to a subse- 
quent Amendment because it compelled the accused to produce 
evidence against himself. It was subsequently held in the case 
of Spies V. United States,^ wherein it was claimed that in a 
state court the papers of the accused had been seized without 
warrant and contrary to the Amendment, that it did not apply 
because it limited only the powers of the Federal Government 
and not of the states. 



* Pari. Hist, xv, 1331, n.; Lord 
Mahon's Hist., v, 45; Adolphus's 
Hist., i, 116. 

2 Rex V. Wilkes, 4 Burr, 2527, 

2574- 

» Wilkes V. Wood, 19 State Trials, 

1 153. 



* Leach v. Money, 19 State Trials, 
looi. Denman's Brown's Const, 
Law, 522 seq. 

6 116 U. S. 616. 

« 123 U. S. 131. 



VIII.l THE FIRST TWELVE ARTICLES OF AMENDMENT 235 

Article v provides that "no person shall be held to answer Guarantees of 
for a capital, or otherwise infamous crime, unless on a present- f^^ Process of 
ment or indictment of a grand jury, except in cases arising in 
the land or naval forces, or in the militia, when in actual 
service in time of war or in pubUc danger ; nor shall any person 
be subject for the same offense to be twice put in jeopardy of 
life or limb ; nor shall be compelled in any criminal case to be 
a witness against himself; nor be deprived of life, liberty, or 
property, without due process of law; nor shall private pro- 
perty be taken for public use, without just compensation." 
Into Articles v, vi, and vii are condensed the guarantees of 
due process of law, springing from Article xxxix of the Great 
Charter and' from the English jury system, grand and petit, 
as that system existed at the time of the severance of the 
colonies from the mother country. Nothing more can be at- 
tempted than a statement of the essence of the judicial litera- 
ture that has grown up around each Article since its adoption. 
The purpose of the first clause of Article v was to perpetuate Perpetuation 

the grand jury as an instrument for the prosecution of serious ?^ *^f ^^°'^ , 

jury in federal 

crimes in the courts of the United States. It has been held courts; 
that it was not the purpose of the due process of law clause 
of Article xiv to perpetuate that institution in the states. In 
Hurtado v. California^ it was said: "We are to construe this 
phrase in the Fourteenth Amendment by the usus loguendi of 
the Constitution itself. The same words are contained in the 
Fifth Amendment. That Article makes specific and express 
provision for perpetuating the institution of the grand jury so 
far as it relates to prosecutions for the more aggravated crimes, 
under the laws of the United States. . . . According to a recog- 
nized canon of interpretation, especially appHcable to formal 
and solemn instruments of constitutional law, we are forbidden 
to assume} without clear reason to the contrary, that any part 
of this most important Amendment is superfluous. The nat- 
ural and obvious inference is, that in the sense of the Constitu- 
tion ' due process of law ' was not meant or intended to include, 
ex vi termini, the institution and procedure of a grand jury 
in any case. The conclusion is equally irresistible that when 
the same phrase was employed in the Fourteenth Amendment 
to restrain the action of the states, it was in the same sense and 
1 iioU. S. 516. 



236 



THE AMERICAN CONSTITUTION 



[Ch. 



but not in 
state courts. 



Exemption 
from self- 
incrimination. 



"Due process" 
traced to 
Magna Carta. 



with no greater extent; and that if in the adoption of that 
Amendment it had been part of its purpose to perpetuate the 
institution of the grand jury in all the states, it would have 
embodied, as did the Fifth, express declarations to that ef- 
fect." For a reexamination of the question at a later day, see 
Maxwell v. Dow.^ Thus it appears that the Fifth Article is a 
limitation upon the powers of the National Government, while 
the Fourteenth is a limitation upon the powers of the states.^ 
Under the Fifth it is necessary that the accused plead, or 
be ordered to plead, or, in a proper case, that a plea of not 
guilty be filed for him, before his trial can rightfully proceed ; 
and the record of his conviction should show distinctly, and not 
by inference merely, that every step involved in due process 
of law, an essential to a valid trial, was taken in the trial court ; 
otherwise the judgment will be erroneous.' It is also the right 
of the accused to be present during the whole trial, a right of 
which he cannot be deprived even with his consent.^ The 
clause which provides that " no person . . . shall be compelled 
to be a witness against himself" has been recently considered 
in Twining v. New Jersey,^ in which it was held that exemp- 
tion from self-incrimination, though secured as against federal 
action by Article v, is not one of the fundamental rights of 
national citizenship, so as to be included among the privileges 
and immunities of citizens of the United States which the 
states are forbidden by Article xiv to abridge. The very 
learned and exhaustive opinion delivered in that case by Mr. 
Justice Moody was one of many evidences of his growing fame 
as a jurist at the moment when ill health most unfortunately 
deprived the Court and the country of his valuable services, 
an event lamented by every member of the bar. The all im- 
portant clause that "no person shall be . . . deprived of life, 
liberty, or property without due process of law" was first ex- 
pounded in Murray's Lessee v. Hoboken Land and Improve- 
ment Co.,® in which the Court, speaking through Mr. Justice 
Curtis, said : "The words ' due process of law ' were undoubtedly 
intended to convey the same meaning as the words ' by the law 

1 176 U. S. 581. * Lewis V. United States, 146 

2 Spies v. Illinois, 123 U. S. 131, U.S. 372. 

166. 6 211 U. S. 78. 

» Grain v. United States, 162 '18 How. 272. 

U. S. 625. 



VIII.] THE FIRST TWELVE ARTICLES OF AMENDMENT 237 

of the land,' in Magna Carta. Lord Coke in his commentary 
on those words (2 Inst. 50) says they mean due process of law." 
Following in the path thus marked out, Mr. Justice Miller, in 
Davidson v. New Orleans,^ said: "The equivalent of the 
phrase 'due process of law,' according to Lord Coke, is found 
in the words 'law of the land ' in the Great Charter, in connec- 
tion with the writ of habeas corpus, the trial by jury, and other 
guaranties of the rights of the subject against the oppression of 
the Crown. ' ' An effort has been heretofore made to demonstrate 
that these eminent justices fell into a grave historical mistake A grave 
when they thus assumed that the meaning of "due process of ^^^ 
law" should be accepted by American courts in the limited 
sense in which it was understood by Coke in 1632, prior to the 
great Revolutions of 1640 and 1688 by which it was given a 
vastly wider significance. It was then said that the draftsmen 
of our first constitutions would have recoiled with horror at the 
thought that they were founding American constitutional law 
upon the ancient English Constitution as it existed in 1632 
— with the Star Chamber and High Commission intact — and 
not upon the reformed English Constitution, as Blackstone 
described it in the first book of his famous " Commentaries," 
put in their present form in 1758.2 After declaring in Barron Barron 0. 
V. Baltimore ^ that the final clause, "nor shall private property ^^timore. 
be taken for pubUc use, without just compensation," is in- 
tended "solely as a limitation on the exercise of power by the 
Government of the United States," Marshall, C. J., said : " But 
it is universally understood, it is part of the history of the day, 
that the great revolution which established the Constitution of 
the United States was not effected without immense opposi- 
tion. Serious fears were extensively entertained that those 
powers which the patriot statesmen who then watched over the 
interests of our country deemed essential to union, and to 
the attainment of those invaluable objects for which union was 
sought, might be exercised in a manner dangerous to liberty. 
In almost every convention by which the Constitution was 
adopted, amendments to guard against the abuse of power 
were recommended. These amendments demanded security 
against the apprehended encroachments of the General Gov- 
ernment — not against those of the local governments." 
^ 96 U. S. 97. 2 See above, p. 78. » 7 Pet. 243. 



238 

Jury trials in 
criminal cases 
safeguarded. 



THE AMERICAN CONSTITUTION 



[Ch. 



Trials must 
be speedy 
and public. 



English 
criminal 
trials prior 
to civil war. 



Article VI provides that "in all criminal prosecutions, the ac- 
cused shall enjoy the right to a speedy and public trial, by an 
impartial jury of the state and district wherein the crime shall 
have been committed, which district shall have been previously 
ascertained by law, and to be informed of the nature and cause 
of the accusation ; to be confronted with the witnesses against 
him; to have compulsory process for obtaining witnesses in 
his favor, and to have the assistance of counsel for his defense." 
In the original Constitution (Art. ill. Sec. 2, Clause 3) it is pro- 
vided that "the trial of all crimes, except in cases of impeach- 
ment, shall be by jury; and such trial shall be held in the state 
where the said crimes shall have been committed; but when 
not committed within any state, the trial shall be at such place 
or places as the Congress may by law have directed." By the 
Fifth Article, just considered, careful provision was made as 
to the method of accusation by "presentment or indictment 
of a grand jury," provided the accused was charged with "a 
capital, or otherwise infamous crime." By the Sixth every 
safeguard is provided for a speedy and public trial by petit 
juries of accusations thus made, including every material de- 
tail of the proceedings as to the accusation, counsel, and wit- 
nesses. In Mattox v. United States ^ it was held that the clause 
providing that the accused must be confronted with the wit- 
nesses against him was not violated by the use upon the second 
trial for the offense of the copy of the testimony of a dead 
witness given upon the first trial when the accused was con- 
fronted by the witness. In Motes v. United States ^ it was 
held, however, that the right of the accused to be confronted 
with witnesses against him is violated by permitting to be read 
at the final trial a deposition or statement of an absent witness 
taken at an examination trial, when it does not appear that 
the witness was absent at the suggestion, connivance, or pro- 
curement of the accused, and when it does appear that his 
absence was due to the negligence of the prosecution. A great 
authority on the "History of the Criminal Law of England"' 
has told us that "upon the whole it may be said that the 
criminal trials of the century preceding the civil war differed 
from those of our own day in the following important particu- 



» 156 U. S. 237. 
* 178 U. S. 458. 



' Sir James Fitzjames Stephen, 
i. 350. 



VIII.l THE FIRST TWELVE ARTICLES OF AMENDMENT 239 

lars: (i) The prisoner was kept in confinement more or less 
secret till his trial, and could not prepare for his defense. He 
was examined and his examination was taken down. (2) He 
had no notice beforehand of the evidence against him, and 
was compelled to defend himself as well as he could when the 
evidence, written or oral, was produced on his trial. He had no 
counsel either before or at the trial. (3) At the trial there were 
no rules of evidence, as we understand the expression. The 
witnesses were not necessarily (to say the very least) confronted 
with the prisoner, nor were the originals of the documents 
required to be produced. (4) The confessions of accomplices 
were not only admitted against each other, but were regarded 
as specially cogent evidence. (5) It does not appear that the 
prisoner was allowed to call witnesses on his own behalf ; but 
it matters little whether he was or not ; as he had no means of 
ascertaining what evidence they would give, or of procuring 
their attendance." ^ In Scotland no witnesses were allowed for 
the prisoner until the eighteenth century, nor in France until 
the Revolution. After the accession of the House of Stuart After acces- 
England began to mitigate such barbarous practices, drawn in ^f°ot°l?°"^ 
the main from Roman law, which refused to permit a party 
accused in a capital case to exculpate himself by the testimony 
of witnesses. Then it was that the House of Commons insisted, 
in a particular bill then pending, despite the opposition of the 
Crown and the Lords, upon affirming the right, in cases tried 
under that Act, of witnesses being sworn for, as well as against, 
the accused. By the statute of 7 and 8 Will. Ill, c. 3, the same 
rule was established in cases of treason and felony. By that 
statute as supplemented by 7 Anne, c. 27, s. 14, it was provided 
that a copy of the indictment against the prisoner charged 
with high treason should be delivered to him at least five days 
before the trial, and a copy of the panel of jurors two days be- 
fore the trial ; that he should be entitled to process to compel 
the attendance of witnesses to be examined on oath, and 
throughout the trial to the assistance of counsel.^ Not until a 
later time was the right to be represented by counsel extended 
to all other cases. In Andersen v. Treat,^ it was held that the 

* Sir James Fitzjames Stephen, * See The Origin and Growth oj 

History of the Criminal Law of Eng- the Eng. Const., ii, 432-433. 
land, i, 351-354- » 172 U. S. 24. 



240 

Right of coun- 
sel to confer 
with prisoner. 



THE AMERICAN CONSTITUTION 



[Ch. 



Enumeration 
of rights of 
accused in 
Sixth Amend- 
ment. 



Rule of inter- 
pretation. 



Jury trials in 
civil cases ■ 
guaranteed. 



refusal to permit counsel engaged by a prisoner to have a con- 
sultation with him before the district attorney had seen and 
examined him is not ground for attacking a conviction by 
habeas corpus, when the prisoner waived an examination before 
a commissioner, and was represented on the trial by counsel 
assigned to him at his own request, and the statement made by 
him to the district attorney was voluntary and was not put in 
evidence, and no objections were raised to questions asked him 
on the stand as to what he said on that occasion, and no wit- 
nesses were called to contradict his answers. When in the case 
of Callan v. Wilson,^ the guarantee of an impartial jury trial 
was in question the Court said : " The enumeration, in the Sixth 
Amendment, of the rights of the accused in criminal prosecu- 
tions is to be taken as a declaration of what those rules were, 
and is to be referred to the anxiety of the people of the states to 
have in the supreme law of the land, and, so far as the agencies 
of the General Government were concerned, a full and distinct 
recognition of those rules, as involving the fundamental rights 
of life, liberty, and property. This recognition was demanded 
and secured for the benefit of all of the people of the United 
States, as well those permanently or temporarily residing in 
the District of Columbia, as those residing or being in the 
several states." Special reference should be made here to 
the weighty words of Mr. Justice Brown, who, in construing 
in Mattox v. United States, heretofore cited, the provision that 
the accused shall "be confronted with the witnesses against 
him," said: "We are bound to interpret the Constitution in 
the light of the law as it existed at the time it was adopted, not 
as reaching out for new guaranties of the rights of the citizen, 
but as securing to every individual such as he already possessed 
as a British subject — such as his ancestors had inherited and 
defended since the days of Magna Carta." 

Article vii provides that " in suits at common law, where the 
value in controversy shall exceed twenty dollars, the right of 
trial by juryshall be preserved, and no fact tried by a jury shall 
be otherwise reexamined in any court of the United States, 
than according to the rules of the common law." The outcry 
against the new Constitution for its failure to provide satis- 
factory guarantees of trial by jury in criminal cases — a defect 
* 127 U. S. 540. 



VIII.] THE FIRST TWELVE ARTICLES OF AMENDMENT 241 

remedied by the Fifth and Sixth Articles — was repeated with 
even greater emphasis when it was ascertained that as to trial 
by jury in civil cases there was no guarantee at all. In the 
absence of such an assurance, deep suspicion was expressed 
on account of Article in, Sec. 2, Clause 2, which provides that 
"the Supreme Court shall have appellate jurisdiction, both 
as to law and fact, with such exceptions, and under such regu- 
lations as the Congress shall make." We learn from "The Fed- 
eralist " that the contention was made that by virtue of that 
"appellate" power the Supreme Court could set aside the 
decision made by a jury as to a question of fact. "Some well 
intentioned men in this state," says Hamilton, " deriving their Hamilton in 
notions from the language and forms which obtain in our "^^t »^" 
courts, have been induced to consider it as an implied super- 
sedure of the trial by jury, in favor of the civil-law mode of 
trial which prevails in our courts of admiralty, probate, and 
chancery. A technical sense has been affixed to the term 
'appellate,' which, in our parlance, is commonly used in refer- 
ence to appeals in the course of the civil law." ^ To quiet 
such apprehensions the article in question was adopted, which, 
after clearly excluding by implication suits in equity, expressly 
provides that all suits at common law, over a certain amount, 
shall be tried by jury, "and that no fact tried by a jury shall be 
otherwise reexamined in any court of the United States, than 
according to the rules of the common law." In Elmore v. 
Grymes,^ the Court held that the plaintiff had a right to have Right to have 
his cause submitted to a jury, after a peremptory nonsuit ca^sesub- 
against his will had been ordered in the Circuit Court ; and the 
same general doctrine was applied in Parsons v. Bedford,^ and 
in Castle v. Bullard.^ In Baylis v. Insurance Company ^ it was 
held that a court cannot substitute itself for a jury and pass 
upon the effect of the evidence and render judgment thereon, 
without an express waiver of the right of trial by jury. In 
McElrath v. United States ® it was held that a suit against the 
Government could be tried in the Court of Claims without a 
jury, because such a suit is not one at common law within the 

^ The Federalist (Ford ed.), no. * 23 How. 172. 

Ixxxii, pp. 546-547- ^ 113 U. S. 316. 

» I Pet. 469. « 102 U. S. 426. 

• 3 Pet. 433. 



242 



THE AMERICAN CONSTITUTION 



[Ch. 



Opinion of 
judge as to 
weight of 
evidence. 



Limit 
to hostile 
comments. 



Excessive 
bail and fines 
prohibited. 



meaning of the Amendment; and such was the distinction 
drawn in Guthrie National Bank v. Guthrie.^ When we con- 
sider how large the scope of the English judges has always 
been in expressing their views on the facts to the jury, and in 
directing verdicts according to their opinions, it is not strange 
that in the case of Allis v. United States,^ a criminal case, it 
should have been held that the judge may express his opinion 
as to the weight of the evidence, and may recall the jury after 
deliberation for a time to ascertain their difificulties, and to 
make proper efforts to assist them in their conclusions. In the 
earlier case of Simmons v. United States,^ the Court had said: 
" It is so well settled, by a long series of decisions of this Court, 
that the judge presiding at a trial, civil or criminal, in any 
court of the United States, is authorized, whenever he thinks 
it well to assist the jury in arriving at a just conclusion, to 
express to them his opinion upon the questions of fact which he 
submits to their determination." It was however held in Hicks 
V. United States,* that the wise and humane provision of the 
law that "the person charged shall, at his own request, but not 
otherwise, be a competent witness," should not be defeated 
by hostile comments of the trial judge on the testimony of the 
accused; and in Allison v. United States,^ a new trial was 
granted because the trial judge had attempted to charge the 
jury as to the weight to be attributed to the evidence given 
by the accused in his own behalf. But such conclusions are 
not in conflict with Randall v. B. & O. R. R. Co.,^ wherein the 
general rule was laid down that when the evidence given at 
the trial, with all the inferences that the jury could justifiably 
draw from it, is insufficient to support a verdict for the plain- 
tiff, so that a verdict, if returned, must be set aside, the court 
may direct a verdict for the defendant. 

Article viii provides that "excessive bail shall not be re- 
quired, nor excessive fines imposed, nor cruel and unusual 
punishments inflicted." In order to restrain the King from 
the wanton or tyrannical imposition of amercements, — the 
pecuniary fines laid on those who had offended against the 
royal prerogative, — it was provided by the Great Charter 



» 173 U. S. 528. 
2 155 U. S. 123. 
» 142 U. S. 155. 



« 150 U. S. 442. 
8 160 U. S. 203. 
* 109 U. S. 478. 



VIII.] THE FIRST TWELVE ARTICLES OF AMENDMENT 243 

that the freeman shall only be amerced according to his fault, 
saving to him the means of maintenance; and in like manner 
the merchant, saving to him his merchandise; and also the 
villein, except he be the King's villein, saving to him his wain- 
age. No amercements shall be assessed in any case but by 
the oaths of honest and lawful men of the neighborhood.^ In 
the Bill of Rights it is provided "that excessive bail ought 
not to be required, nor excessive fines imposed; nor cruel and 
unusual punishments inflicted." Thus it appears that the 
article in question is simply a copy of Article 10 of the Bill Article 10 of 
of Rights, which rests in part upon chapters 20, 21, 22 of the fe^jo^S^^' 
Great Charter. The Supreme Court has firmly resisted all 
attempts to construe it as a limitation upon the power of the 
states. The conclusion first announced in Pervear v. Massa- 
chusetts 2 was repeated in Ex parte Kemmler,^ when the Electrocution 
attempt was made to prevent electrocution as a cruel and ^°^.Pf" - 
unusual punishment. It was therein held that as the article in 
question was not designed to interfere with the power of the 
state to protect the lives, liberties, and property of its citizens, 
and to promote their health, peace, morals, education, and 
good order, a statute inflicting the punishment of death by 
electricity is within the legitimate sphere of state legislation. 
With this article ends that part of our national Bill of 
Rights which is drawn from the English system. Even a casual 
inspection of the material thus derived will convince any one 
familiar with the history of that system that, after excepting 
the due process of law clause derived from the Great Charter, 
nearly all of the remaining provisions are taken from the 
modern English Constitution as reformed and invigorated Modem Eng- 
during the Revolutions of 1640 and 1688. In other words, that H^^ Constitu- 

iir •• 11 ii.T^iif t^°^ ^ source. 

body of new constitutional law evolved in England between 
1640 and 1776, first formulated in the bills of rights of the 
original state constitutions, finally reappeared in the first 
eight articles of amendment to the existing federal system. 
If anything in the history of any country is certain. It is that 
the essence of the English constitutional system as reformed 
by the Revolutions of 1640 and 1688, and as defined by^Black- 

1 Chaps. 20, 21, 22. Upon the * 5 Wall. 475. 

whole subject of amercements, see * 136 U. S. 436. 

Reeves, Hist of Eng. Law, ii, 35-39. 



244 



THE AMERICAN CONSTITUTION 



[Ch. 



An act of 
over-caution. 



Contention 
that bill of 
rights was 
unnecessary^ 



Maxim of 
expressio unius. 



Stone In 1758, passed into our first state constitutions, which 
were the filter-beds through which the essence of the reformed 
system passed into the existing Constitution of the United 
States. 

Article ix provides that "the enumeration in the Constitu- 
tion, of certain rights, shall not be construed to deny or dis- 
parage others retained by the people." In that provision over- 
caution reached its climax in a declaration made redundant by 
the eight preceding articles of amendment, each of which had 
proclaimed in substance the same thing. Or to put the matter 
in another form, Article ix is a brief and dogmatic answer to 
the contention that no bill of rights was necessary as a preface 
to a constitution creating a government of limited and enumer- 
ated powers. That contention, as stated by Hamilton, was 
this: "I go further, and affirm that bills of rights, in the 
sense and to the extent in which they are contended for, are 
not only unnecessary in the proposed Constitution, but would 
even be dangerous. They would contain various exceptions to 
powers not granted; and, on this very account, would afford 
a colorable pretext to claim more than were granted. For 
why declare that things shall not be done which there Is no 
power to do? Why, for instance, should it be said that liberty 
of the press shall not be restrained, when no power is given by 
which restrictions may be Imposed? I will not contend that 
such a provision would confer a regulating power; but it is evi- 
dent that it would furnish, to men disposed to usurp, a plausible 
pretense for claiming that power. " ^ Prior to that he had said : 
"But a minute detail of particular rights is certainly far less 
applicable to a Constitution like that under consideration, 
which is merely intended to regulate the general political inter- 
ests of the nation, than to a Constitution which has the regula- 
tion of every species of personal and private concerns." To 
such reasoning the counterblast of the over-cautious was that 
the maxim expressio unius exclusio est alterius, good enough 
in Its proper place, might be improperly applied to the rights 
of the people in reference to the powers of government created 
by the new Constitution. As Story (sec. 453) has well expressed 
it: "This clause was manifestly introduced to prevent any 
perverse or ingenious misapprehension of the well known 
* The Federalist (Ford ed.), no. Ixxxiv, pp. 573-574. 



VIII.] THE FIRST TWELVE ARTICLES OF AMENDMENT 245 

maxim, that an affirmation in particular cases implies a nega- 
tion in all others; and e converso, that a negation in particular 
cases implies an affirmation in all others. The maxim, rightly 
understood, is perfectly sound and safe; but it has often been 
strangely forced from its natural meaning into the support of 
the most dangerous political heresies. The amendment was 
undoubtedly suggested by the reasoning of * The Federalist ' on 
the subject of a general bill of rights." 

Article x provides that "the powers not delegated to the Reserved 
United States by the Constitution, nor prohibited by it to the thTstates 
states, are reserved to the states respectively, or to the people." 
As explained already, Pelatiah Webster, clearly foreseeing the 
difficulties certain to arise on that subject, embodied in his 
plan an expository statement so luminous, so comprehensive, 
that its adoption would have rendered entirely unnecessary 
both the ninth and tenth articles of amendment.^ Without 
repeating that statement, heretofore quoted at length, suffice 
it to say that the argument that it is impossible to confine 
a government to the exercise of express powers, and that there 
must be powers necessarily implied, was met in Fairfax v. 
Hunter,^ by the declaration that "the Government, then, of 
the United States can claim no powers which are not granted 
to it by the Constitution, and the powers actually granted 
must be such as are expressly given, or given by necessary im- 
plication." In McCulloch v. Maryland,^ Marshall, C. J., ex- Marshall on 
hausted the subject when he said: "A constitution, to contain ™Plied powers, 
an accurate detail of all the subdivisions of which its great 
powers will admit, and of all the means by which they may be 
carried into execution, would partake of the perplexity of a 
legal code, and could scarcely be embraced by the human mind. 
. . . The Government which has a right to do an act, and has 
imposed on it the duty of performing that act, must, according 
to the dictates of reason, be allowed to select the means; and 
those who contend that it may not select any appropriate means, 
that one particular mode of effecting the object is excepted, 
take upon themselves the burden of establishing that excep- 
tion. . . . Let the end be legitimate, let it be within the scope 
of the Constitution, and all means which are appropriate, which 

^ See above, p. 154 sq. * 4 Wheat. 316. 

* I Wheat. 326. 



246 



THE AMERICAN CONSTITUTION 



[Ch. 



States pro- 
tected against 
certain suits. 



Chisholm v. 
Georgia forced 
Article xi. 



Hollingsworth 
V. Virginia. 



are plainly adapted to that end, which are not prohibited, 
but consist with the spirit and letter of the Constitution, are 
constitutional." 

Article xi provides that "the judicial power of the United 
States shall not be construed to extend to any suit in law or 
equity, commenced or prosecuted against one of the United 
States by citizens of another state, or by citizens or subjects 
of any foreign state." That article, proposed to the legisla- 
tures of the several states by the Third Congress on March 5, 
1794, was declared ratified by the legislatures of three fourths 
of the states in a message from the President to Congress dated 
January 8, 1798. Thus it appears that eight years inter- 
vened between the adoption of the first ten articles of amend- 
ment and the eleventh. During that interval the necessity for 
such an amendment was disclosed by the case of Chisholm 
V. Georgia^ (i793)» the third case entered on the "original 
docket" of the Supreme Court, an action of assumpsit, in 
which the following questions arose: "i. Can the State of 
Georgia, being one of the United States of America, be made 
a party defendant in any case in the Supreme Court of the 
United States, at the suit of a private citizen, even though he 
himself is, and his testator was, a citizen of the State of South 
Carolina? 2. If the State of Georgia can be made a party de- 
fendant in certain cases, does an action of assumpsit lie against 
her? 3. Is the service of the summons upon the Governor and 
Attorney-General of the State of Georgia a competent service? 
4. By what process ought the appearance of the State of 
Georgia to be enforced?" After preliminary action in 1793, 
"in February term, 1794, judgment was rendered for the 
plaintiff, and a writ of inquiry awarded. The writ, however, 
was not sued out and executed, so that this cause, and all 
other suits against states, were swept at once from the records 
of the Court by the amendment to the Federal Constitution, 
agreeably to the unanimous determination of the judges in 
Hollingsworth v. Virginia, argued at February term, 1789." 
In that case the Court held "that the amendment being consti- 
tutionally adopted, there could not be exercised any jurisdic- 
tion in any case, past or future, in which a state was sued by 
the citizens of another state, or by citizens or subjects of any 

1 2 Dall. 419. 



VIII.] THE FIRST TWELVE ARTICLES OF AMENDMENT 247 

foreign state." * With the insertion of the words "be construed 
to," not in the Amendment as originally proposed, it became 
possible to give to the Amendment such a retroactive effect 
as nullified the result announced in Chisholm v. Georgia. For 
a more extended view, see Cohens v. Virginia ;2 Bank of the 
U. S. V. Planters* Bank;' New Hampshire v. Louisiana and 
New York v. Louisiana;* Re Ayers.^ The prohibitions of the Suit by 
article in question do not protect a state against a suit by an- sovera^. 
other state, or, it would seem, against a suit by a foreign sover- 
eign. Mr. Justice Curtis once said that "a foreign citizen or 
subject cannot sue a state; but a foreign sovereign, as, for in- 
stance, the Queen of England, may bring a suit against the 
State of Massachusetts, or any other state in the Union, in 
the Supreme Court of the United States. " ^ 

Article xii provides that "the electors shall meet in their Electoral 
respective states, and vote by ballot for President and Vice- amended 
President, one of whom, at least, shall not be an inhabitant of 
the same state with themselves ; they shall name in their bal- 
lots the person voted for as President, and in distinct ballots 
the person voted for as Vice-President, and they shall make 
distinct lists of all persons voted for as President, and of all 
persons voted for as Vice-President, and of the number of votes 
for each, which lists they shall sign and certify, and transmit 
sealed to the seat of the Government of the United States, 
directed to the President of the Senate; the President of the 
Senate shall, in presence of the Senate and House of Repre- 
sentatives, open all the certificates and the votes shall then be 
counted; the person having the greatest number of votes for 
President, shall be the President, if such number be a majority 
of the whole number of electors appointed; and if no person 
have such majority, then from the persons having the highest 
numbers not exceeding three on the list of those voted for as 
President, the House of Representatives shall choose immedi- 
ately, by ballot, the President. But in choosing the President, 
the votes shall be taken by states, the representation from each 
state having one vote; a quorum for this purpose shall consist 

* 3 Dall. 382. 6 Q_ Curtis, Jurisdiction of the 

* 6 Wheat. 406. United States Supreme Court (Har- 

* 12 Pet. 731. vard Lectures, Merwin ed.), citing 

* 108 U. S. 89. Memoir t etc., of Judge Curtis, i, 282. 
6 123 U. S. 489. 



248 



THE AMERICAN CONSTITUTION 



[Ch. 



Menacing 
conditions 
arising out 
of election of 
1800. 



Election by 
the House. 



of a member or members from two thirds of the states, and 
a majority of all the states shall be necessary to a choice. And 
if the House of Representatives shall not choose a President 
whenever the right of choice shall devolve upon them, before 
the fourth day of March next following, then the Vice-President 
shall act as President, as in the case of the death or other con- 
stitutional disability of the President. The person having the 
greatest number of votes as Vice-President, shall be the Vice- 
President, if such number be a majority of the whole number 
of electors appointed, and if no person have a majority, then 
from the two highest numbers on the list, the Senate shall 
choose the Vice-President ; a quorum for the purpose shall con- 
sist of two thirds of the whole number of Senators, and a major- 
ity of the whole number shall be necessary to a choice. But 
no person constitutionally ineligible to the office of President 
shall be eligible to that of Vice-President of the United States." 
That article, proposed to the legislatures of the several states 
by the Eighth Congress, on December 12, 1803, in lieu of the 
original third paragraph of the first section of the Second 
Article, was declared to have been ratified by the legislatures 
of three fourths of the states in a proclamation of the Secretary 
of State, dated September 25, 1804. 

Thus it appears that nearly seven years intervened between 
the adoption of the Eleventh and Twelfth Articles of amend- 
ment. During that interval the necessity for the last-named 
was disclosed by the menacing condition of things arising out 
of the presidential election of 1800 in which Jefferson and Burr 
were voted for by the same political party, each receiving 
an equal number of electoral votes, — seventy-three against 
sixty-five for Adams, sixty-four for Pinckney, and twenty-one 
for Jay. Under the Constitution as it then stood, President and 
Vice-President could not be separately designated on electoral 
tickets. As party spirit had prompted seventy-three of the 
electors to vote for the same two men, these two were tied for 
the first place. There being no choice, the election went to 
the House of Representatives under the provision of the 
original Constitution declaring that when two persons have an 
equal vote, and each has a majority over all, the House should 
choose one of them as President. The House had a Federalist 
majority, but, by the equality of votes between Jefferson and 



VIII.] THE FIRST TWELVE ARTICLES OF AMENDMENT 249 

Burr, it was forced constitutionally to choose between two 
Republicans. Under such conditions the fear was that there 
would be no election, and thus an interregnum which might 
disrupt the Union. Finally on the 26th ballot by states, five 
Federalists from South Carolina, four from Maryland, one 
from Vermont, and one from Delaware did not vote, thus en- 
abling the Republican members from Vermont and Maryland 
to cast the votes of those states for Jefferson. In that way by 
the votes of ten states he was elected President, Burr becom- 
ing Vice-President. The result of that crisis was the article in 
question which directs each elector to vote for President and 
Vice-President as such. 

Into the Twelfth Amendment passed that clause of the Right 
original Constitution (Art. 11, Sec. i. Par. 3) which provides that electoral 
"the President of the Senate shall, in the presence of the votes. 
Senate and House of Representatives, open all the [electoral] 
certificates, and the votes shall then be counted." When a 
conflict arose between Hayes and Tilden, the opposing pre- 
sidential candidates in the election of 1876, a majority of the 
Senate was favorable to the former, a majority of the House was 
favorable to the latter. The friends of the former claimed that 
the power to count the votes was vested in the President of 
the Senate, the House and Senate being mere spectators. The 
friends of the latter contended that the President of the Senate 
could only act ministerially; that the presence of the two 
Houses made them the controlling supervisors of his acts ; that 
the real power to count the votes was vested in the two Houses 
acting concurrently. That manifestly sound view was strength- 
ened by the history of the previous conduct of the two Houses 
in 1793, 1797, and 1800, when the President of the Senate had Precedents of 

simply exercised the ministerial function of opening the certi- 1793. 1797, 
'^ ^ /• . J ^^^ 1800. 

ficates and laying them before the two Houses, The friends 

of the latter also insisted that Congress should continue the 

practice followed since 1865, which was that no vote objected 

to should be counted except by the concurrence of both Houses. 

As the House was strongly Democratic, the throwing-out of the 

vote of one state meant the election of Tilden. In the presence 

of such a crisis Congress, in order to break the deadlock by 

a compromise, passed "The Electoral Commission Act," under mission Act, 

which the disputed electoral certificates were considered and de- Jan. 29, 1877- 



250 



THE AMERICAN CONSTITUTION 



[Ch. 



Electoral 
Count Act, 
February 3, 
1887. 



Survivors at 
end of con- 
structive 
period. 



cided upon by the Electoral Commission, subject to be set aside 
by the concurrent vote of the two Houses. While the constitu- 
tionality of the Act was gravely doubted, it served the purpose 
for which it was intended. The Commission created by it 
rescued the country from a real peril by a party vote of eight 
to seven in favor of Hayes. As a concurrent vote of the two 
Houses could never be obtained, the decisions of the abnormal 
tribunal as to the disputed certificates remained unreversed. 
In the hope of preventing the intervention of such a tribunal 
in the future, the Electoral Count Act was approved February 
3, 1887, which provides that the President of the Senate shall 
open the electoral certificates in the presence of both Houses, 
and hand them to the tellers, two from each House, who are to 
read them aloud and record the votes, — the, purpose being to 
throw upon each state, so far as possible, the responsibility of 
determining how its own presidential vote has been cast. The 
effect of that Act, when considered in connection with the Elect- 
oral Commission Act, should be to annihilate the monstrous 
claim that the President of the Senate is vested with the power 
to count the electoral vote with the two Houses standing by as 
impotent spectators. The ultimate power is certainly vested 
in the two Houses acting concurrently; as supervisors of the 
ministerial acts of the President of the Senate, they are the 
guardians of the count and the arbiters of the final result.^ 

With the ratification of the Twelfth Amendment the construc- 
tive work of the founders of the Republic drew to a close. By 
that time Washington, Pelatiah Webster, Franklin, Hamilton, 
John Rutledge, James Wilson, George Mason, Roger Sher- 
man, John Blair, and Robert Yates had passed away; while 
Jefferson, John Adams, Madison, Marshall, Charles Pinckney, 
Oliver Ellsworth, Elbridge Gerry, Rufus King, Edmund Ran- 
dolph, Robert Morris, Gouverneur Morris, John Langdon, 
George Wythe, and Richard Dobbs Spaight still remained. 
Not one of that number, however, survived the sixty-one years 
destined to pass by before the ratification of the Thirteenth 
Article of Amendment on December i8, 1865. It is hard to pass 
from this constructive epoch whose close is marked by the rati- 
fication of the Twelfth Amendment without a word as to the 

* For the best statement of the American Political History, part ii, 
subject as a whole, see Johnston, pp. 508-555. 



VIIL] THE FIRST TWELVE ARTICLES OF AMENDMENT 25 1 

tragic fate of one whose brilliant and useful life was cut short by 
a deadly spirit of revenge, the outcome no doubt of the bitter- 
ness and disappointment incident to the political contest in 
which the Amendment was born. After the struggle for the Hamilton. 
Presidency between Jefferson and Burr had passed into the 
House of Representatives, Hamilton, let it be said to his honor, 
earnestly opposed those Federalists who resolved to eliminate 
the abler Jefferson by casting their votes for Burr. Finally, by 
the withdrawal of Federalist votes, the battle was lost to Burr. 
The flame thus lighted burned afresh when, through the efforts 
of Hamilton, Burr was defeated in 1804 as a candidate for the 
office of Governor of New York. Then it was that he sought 
and found an excuse for the quarrel which resulted in the duel 
in which Hamilton fell on July 11, 1804, a little more than two 
months before the Twelfth Amendment became a part of the 
fundamental law. The subsequent trial of Burr for treason in Trial of Burr 
1807, before Marshall, Chief Justice, and Griffin, District Judge, ^""^ ''^^'°° 
in the Circuit Court of the United States at Richmond, when 
taken in connection with the case of Bollman and Swartwout, 's 

growing out of the Burr conspiracy, gave rise to opinions 
delivered by the Supreme Court, and by Marshall, C. J., 
sitting apart from it in the Circuit Court, that constitute the 
foundation, in fact almost the entire body of the American law 
of treason.^ In order to abolish the law of constructive treason^ Constructive 
as it existed in England, the Constitution (Art. iii, Sec. 3) pro- ^^^^^"^ j 
vides that "treason against the United States shall consist 
only in levying war against them, or in adhering to their ene- 
mies, giving them aid and comfort. No person shall be con- 
victed of treason unless on the testimony of two witnesses 
to the same overt act, or on confession in open court." After 
prolonged argument in Burr's case by a brilliant array of coun- 
sel, the Chief Justice delivered his opinion on August 31, the 
primary purpose of which was to demonstrate that only those 
who had done some act or taken some part in the accomplish- 
ment of the overt act of treason charged in the indictment were 
guilty of the crime as defined in the Constitution. Certain acts 

* For an excellent presentation of Constitutional Decisions, Annotated, 

"the American law of treason," 51-165. 

with the text of the cases referred * Cf. Taylor, The Origin and 

to, see Dillon's MarshalVs Complete Growth oj the Eng. Const., i, 582. 



252 



THE AMERICAN CONSTITUTION 



Oneness of 
English and 
American con- 
stitutional 
law. 



which were supposed to amount to treason having been proved, 
evidence was offered for the purpose of connecting Colonel 
Burr with those who committed these acts, he having been at 
a great distance from the scene of action, in another federal 
district and state. Nothing could more vividly illustrate the 
oneness of English and American constitutional law than the 
following paragraph in which the great Chief Justice defined 
the meaning, in both systems, of the term "levying war." 
He said: "But the term is not for the first time applied to 
treason by the Constitution of the United States. It is a tech- 
nical term. It is used in a very old statute of that country 
whose language is our language, and whose laws form the sub- 
stratum of our laws. It is scarcely conceivable that the term 
was not employed by the framers of our Constitution in the 
sense which had been affixed to it by those from whom we bor- 
rowed it. So far as the meaning of any terms, particularly 
terms of art, is completely ascertained, those by whom they 
are employed must be considered as employing them in that 
ascertained meaning, unless the contrary be proved by the 
context. It is therefore reasonable to suppose, unless it be 
incompatible with other expressions of the Constitution, that 
the term * levying war ' is used in that instrument in the same 
sense in which it was understood in England and in this 
country to have been used in the statute of twenty-fifth of 
Edward III, from which it was borrowed." ^ 



* U. S. V. Burr, 4 Cranch, 470. 



CHAPTER IX 

AFRICAN SLAVERY AND ITS CONSEQUENCES 

The deadly original sin of this Republic was African slavery, Slavery in all 
which had crept into all the colonies prior to the Revolution. prfoJ°o°he 
Finally in 1789 the North and the South covenanted together Revolution. 
in what are known as the "compromises of the Constitution" 
to perpetuate it by law forever. After that fateful compact had 
been signed a great moral revolt took place in the conscience 
of the world which ultimately destroyed the institution in this 
country at the end of a prolonged civil war which, for a time, 
disrupted the Union, in fact if not in law. The driving force 
of that great moral revolt manifested itself in no uncertain 
terms in England when Lord Mansfield, in Sommersett's case,^ Mansfield in 
held that a person forcibly detained in England as a slave, is Sommersett's 
entitled to be discharged on habeas corpus. The essence of the 
reasoning by which that conclusion was reached was this: 
"The state of slavery is of such a nature, that it is incapable 
of being introduced on any reasons, moral or political, but only 
by positive law, which preserves its force long after the reasons, 
occasion, and time itself from which it was created are erased 
from memory. It is so odious that nothing can be suffered to 
support it, but positive law. Whatever inconveniences, there- 
fore, may follow from the decision, I cannot say this case is 
allowed or approved by the law of England ; and therefore the 
black must be discharged." As will be pointed out hereafter, 
the failure, in the celebrated case of Dred Scott,^ — wherein 
a person, having the status of a slave in a state where slavery 
was legal, was taken by his master into a free state of the Case of 
Union in which slavery was prohibited by law, — of the at- ^"^ ^*^°"' 
tempt in this country to enforce the principle thus announced 
by Lord Mansfield, precipitated the civil war. 

^ 20 St. Tr. sq., 12 Geo. III. A. D. See also the Slave Grace, 2 Hagg. 

1771-72. Broom's Constitutional Adm. R. 94, adjudged by Lord Stow- 

Law, 59, 99. ell; The Antelope, 10 Med. 66; Os- 

* Scott V. Sandford, 19 How. 393. born v. Nicholson,^i3 Wallace, 654. 



254 



THE AMERICAN CONSTITUTION 



[Ch. 



Slaves landed 
by Dutch at 
Jamestown, 
1619. 



Cotton-gin, 
1793- 



Three com- 
promises of the 
Constitution. 



Negro slavery, whicH" originated in Africa, spreading to 
Spain before the discovery of America, and to America soon 
after, made its appearance on this continent the year before 
the Mayflower brought the Pilgrims to Plymouth Rock, 
when a Dutch ship landed twenty African slaves at James- 
town. In 1626 the Dutch West India Company began to im- 
port slaves into Manhattan, and by 1637 there were slaves in 
New England. A Royal African Company with the Duke of 
York, afterwards James II, as its president, was formed to 
monopolize the slave trade, which monarchs and ministries 
furthered to the utmost of their power. Despite the fact that 
the Crown forced the institution upon Virginia, that great 
commonwealth had, prior to 1700, a smaller proportion of 
slave population than some of the Northern colonies. While 
before the Revolution all the colonies held negro slaves, at 
the close of the eighteenth century there was a strong anti- 
slavery feeling even in Virginia and North Carolina. Only in 
South Carolina and Georgia was slavery then looked upon with 
favor, owing no doubt to the fact that those states were mostly 
given to the cultivation of rice and indigo, which seemed to 
make slave labor indispensable. A sudden transformation 
took place, however, in 1793, when Whitney, a Connecticut 
schoolmaster living in Georgia, invented the cotton-gin, 
whereby a slave, who by the old process could clean but five 
or six pounds of cotton a day, was enabled to clean a thousand 
pounds a day. Under such a stimulus, slavery at once ceased 
to be a passive and innocuous institution. The first battle 
in the seventy years' war over slavery was fought in the Fed- 
eral Convention of 1787, and the outcome was registered in 
three of the important compromises of the Constitution. By 
the first it was agreed that "the migration or importation of 
such persons as any of the states now existing shall think 
proper to admit, shall not be prohibited by the Congress prior 
to the year one thousand eight hundred and eight, but a tax or 
duty may be imposed on such importation, not exceeding ten 
dollars for each person." ^ By the second it was agreed that 
" Representatives and direct taxes shall be apportioned among 
the several states which may be included within this Union, ac- 
cording to their respective numbers, which shall be determined 

* Art. I, Sec. 9. 



IX.] AFRICAN SLAVERY AND ITS CONSEQUENCES 255 

by adding to the whole number of free persons, Including those 
bound to service for a term of years, and excluding Indians not 
taxed, three fifths of all other persons. " ^ By the third it was 
agreed that "no person held to service or labor in one state, 
under the laws thereof, escaping into another, shall, in con- 
sequence of any law or regulation therein, be discharged from 
such service or labor, but shall be delivered up on claim of the 
party to whom such service or labor may be due." ^ 

While the Federal Convention was entering into these Ordinance 
solemn compacts regarding the institution of slavery at Phil- ° ^' ^' 
adelphia, the Continental Congress, then sitting at New York, 
was completing its last and perhaps its greatest work, — the 
Ordinance of 1787 for the organization and government of the 
vast area known as the Northwest Territory. A brief account 
has been given heretofore of the determined stand taken by 
Delaware, New Jersey, and Maryland, and finally by Mary- 
land alone, whereby the title to that vast domain of which 
France had been dispossessed "by the blood and treasure of 
the thirteen states," was vested In the person of the new nation- 
ality, to be held by it under the Articles of Confederation as 
folkland for the common benefit of all. Nor until Maryland had 
received satisfactory assurances on that subject from certain of 
the larger states, did she agree, on March i, 1781, to complete 
the first Constitution by giving It her adhesion. Exactly three Title to North- 
years thereafter, Virginia, the most important claimant, ex- ^^^^ Temtory. 
ecuted a deed conveying unconditionally, and in due time 
Massachusetts and Connecticut did the same thing.^ The Six 
Nations by a treaty made in 1784 renounced all claims to the 
country west of the Ohio; in January, 1785, the Wyandotte, 
Delaware, Chippewa, and Ottawa nations released the country 
east of the Cuyahoga, and all the lands on the Ohio, south of 
the line of portages from that river to the Great Miami and the 
Maumee; in January, 1786, the Shawnees concluded a treaty 
in which they acknowledged the sovereignty of the United 
States over all their territory as described in the treaty of peace 
with Great Britain, and renounced for themselves all claim 
to property In any lands east of the main branch of the Great 
Miami.* With the extinguishment of the claims of the ceding 

^ Art. I, Sec. 2, Clause 3. * U. S. Statutes at Large, vii, 

* Art. IV, Sec. 2, Clause 3. 15, 16-18, 26. 

' See above, p. 134. 



256 



THE AMERICAN CONSTITUTION 



[Ch. 



All territorial 
lands declared 
national do- 
main, 1780. 



Rufus 
Putnam. 



Temporary 
government 
reported by 
Jefferson, 1784. 



states and the Indian titles to Southern Ohio, and all Ohio 
to the east of the Cuyahoga, the Confederation became the 
owner of the Northwest Territory, — the area out of which 
were carved the great states of Michigan, Wisconsin, Illinois, 
Indiana, and Ohio, — excepting the Connecticut Reserve. 

In the absence of the power to tax, the Confederation found 
in the public lands under its control the only fund really its 
own. In order to make that fund available the Continental 
Congress, as early as September, 1780, passed a resolution de- 
claring that all territorial lands should be national domain, to 
be disposed of for the common benefit of the states, with priv- 
ilege of its growing into states as equals with the original thir- 
teen. To that resolution can be traced the exercise of national 
sovereignty in the sense of eminent domain. So soon as 
Virginia — who conquered the Northwest during the Revolu- 
tion through the genius and valor of George Rogers Clark 
and his men — relinquished unconditionally her claim by the 
deed of March i, 1784, it became necessary for Congress to 
provide for the government of a domain into which settlers 
were then eager to enter. In the very month in which that deed 
was made, Rufus Putnam — who had in the preceding year 
promoted a petition to Congress of officers and soldiers of the 
Revolution for leave to plant a colony of veterans between 
Lake Erie and the Ohio, in townships of six miles square, with 
large reservations "for the ministry and schools"^ — ap- 
pealed to Washington with the assertion that "you are sen- 
sible of the necessity as well as the possibility of both ofif^cers 
and soldiers fixing themselves in business somewhere as soon 
as possible; many of them are unable to lie long on their oars." 
Under these circumstances Jefferson, as chairman of a com- 
mittee composed of Chase, Howell, and himself, on April 19, 
1784, reported to Congress a plan for a temporary government 
of the territory in which was this article: "That, after the year 
1800, there shall be neither slavery, nor involuntary servitude 
in any of the said states, otherwise than in punishment of 
crimes, whereof the party shall have been convicted." After 
Mr. Spaight had moved to strike out that paragraph, "it was 
struck out — the three Southern States present voting for the 



1 S. P. Hildreth, Pioneer Settlers 
of Ohio, 88. Walker, 29. Letter of 



Rufus Putnam, 1 6th June, 1783. 
Bancroft, ii, 105-106. 



IX.l AFRICAN SLAVERY AND ITS CONSEQUENCES 257 

striking out, because the clause did not then contain the pro- 
vision in favor of the recovery of fugitive slaves, which was 
afterwards ingrafted upon it. ** Mr. Webster says the ordinance 
reported by Mr. Jefferson in 1784 did not pass into law. This 
is a mistake again. It did pass ; and that within five days after 
the anti-slavery clause was struck out — and that without any 
attempt to renew that clause, although the competent number 
(seven) of non-slaveholding states were present — the col- 
league of Mr, Dick having joined him, and constituted the 
presence of New Jersey." ^ In March, 1785, the subject was Jefferson's 
revived, without a definite result, by King of Massachusetts, jg^^°^\, 
who proposed the rejected anti-slavery article as originally King in 1785. 
offered by Jefferson, with this addition: "And that this regula- 
tion shall be an article of compact, and remain a fundamental 
principle of the constitutions between the thirteen original 
states, and each of the states described in the resolve." Thus 
the matter stood when the Eighth Congress found itself with 
a quorum in February, 1787. To that Congress Virginia 
sent Madison, Richard Henry Lee, Ekiward Carrington, and 
William Grayson, always opposed to slavery, who was chosen 
presiding officer. As the necessity of providing a territorial 
government was more than ever urgent, the report on that sub- 
ject, which was to have had its third reading on May 10, was, 
on July 9, referred to a new committee ^ composed of Edward 
Carrington, Nathan Dane, Richard Henry Lee, Kean of South 
Carolina, and Melancthon Smith of New York, who worked 
so diligently that on July 1 1 their report of an ordinance for Report by 
the government of the Northwest Territory, embodying the J^^'^ii'^s?^ 
best parts of the work of their predecessors, was ready for its 
first reading. But from the draft contained in that report, 
— which provided that the whole territory was to be divided 
into three states only ; that the waters leading into the Missis- 
sippi and St. Lawrence, and the carrying-places between them, 
should be made common highways and free forever; that the 

* Benton's Thirty Years' View, i, that the report of a committee 
133-136, where records of Congress touching the temporary government 
are critically examined and the facts of the western territory had been 
as to Jefferson's authorship put be- referred to the committee; and an 
yond question, indorsement in the Department of 

* Mention is made in the Journals State indicates that that reference 
of Congress, iv, 751, for July 11, was made July 9. 



258 



THE AMERICAN CONSTITUTION 



[Ch. 



Bancroft's 
statement. 



Reference in 
fifth article 
to consent 
of Virginia. 



Utmost good faith should be enjoined towards the Indians; 
that schools and the means of education should forever be 
encouraged ; that irrepealable articles of compact guaranteeing 
the freedom of religious worship and other rights usually con- 
tained in bills of rights should be established, — the subject 
of slavery was omitted altogether. With that grave omission 
the ordinance received its first reading and was ordered to be 
printed. As the subsequent proceedings have been the subject 
of sectional controversy, the author is content to rest the mat- 
ter upon the statement of Bancroft, who says : "Obeying an 
intimation from the South, Nathan Dane copied from Jefferson 
the prohibition of involuntary servitude in the territory, and 
quieted alarm by adding from the report of King a clause for 
the delivering up of the fugitive slave. This at the second 
reading of the ordinance he moved as a sixth article of com- 
pact, and on the thirteenth of July, 1787, the great statute 
forbidding slavery to cross the river Ohio, was passed by the 
vote of Georgia, South Carolina, North Carolina, Virginia, 
Delaware, New Jersey, New York, and Massachusetts, all the 
States that were then present in Congress. . . . Thomas Jef- 
ferson first summoned Congress to prohibit slavery in all the 
territory of the United States ; Ruf us King lifted up the meas- 
ure when it lay almost lifeless on the ground, and suggested 
the immediate instead of the prospective prohibition ; a Con- 
gress composed of five Southern States to one from New 
England, and two from the Middle States, headed by William 
Grayson, supported by Richard Henry Lee, and using Nathan 
Dane as scribe, carried the measure to the goal in the amended 
form in which King had caused it to be referred to a committee ; 
and, as Jefferson had proposed, placed it under the sanction of 
an irrevocable compact." ^ But here let it be remembered that 
this celebrated ordinance — into which six articles were in- 
serted to be considered as compacts between the original thir- 
teen states and the people of said territory, to remain forever 
unalterable, unless by common consent — provided in the fifth 
article for forming from said territory not less than three nor 
more than five states, the boundaries of which were to be fixed 
by the articles "as soon as Virginia shall alter her act of cession 
to consent to the same." The fifth article also provided that 
* Bancroft, ii, 1 1 5-1 16. 



IX.] AFRICAN SLAVERY AND ITS CONSEQUENCES 259 

any of said states might form a permanent constitution and 
state government, provided the same were republican, and 
" conformed to the principles contained in said articles," one 
of which, the sixth, forbade slavery in said territory. The dis- 
tinct consent of Virginia, as the grantor in the deed of 1784 
to this territory, thus became necessary not only to the pro- 
posed change of boundary, but also to the clause prohibiting 
slavery. That consent was given by the legislature of Virginia, 
December 30, 1788, in such a form as to ratify and confirm 
both the fifth and sixth articles of the compact for the admis- 
sion of such new states, when their government and consti- 
tution should be republican and in conformity to the principles 
contained in the articles in question. As an eminent Virginia Tucker's 
jurist has expressed it: "This transaction not only estops the summing up. 
other states to deny the exclusive and paramount title of Vir- 
ginia, but estops all others and Virginia to deny that by her own 
sovereign act as owner of the territory she consented that it 
should be free territory forever thereafter. It will be found 
from the learned opinion of Chief-Justice Taney in Dred Scott 
V. Sandford, concurred in by Justices Wayne, Grier, Daniel, 
Campbell, and Catron, in all six judges out of nine, that these 
historical views are fully sustained, though it does not bring 
out the point, so necessary, of Virginia's consent to the pro- 
hibition clause of the articles, and of her unqualified consent 
to it as a condition of the change proposed. The act was not 
an act of Congress under the Articles of Confederation, but an 
act of the several states, Virginia consenting to the establish- 
ment of this ordinance." ^ 

The text of the famous Ordinance of July 13, 1787, entitled Text of the 
"An Ordinance for the government of the territory of the |^™°^f j^y°' 
United States northwest of the river Ohio," which is so great a 13, 1787. 
factor in our constitutional history, is here reproduced : — 

Section i . Be it ordained by the United States in Congress assembled, 
That the said territory, for the purposes of temporary government, be 
one district, subject, however, to be divided into tw^o districts, as future 
circumstances may, in the opinion of Congress, make it expedient. 

Sec 2. Beit ordained by the authority aforesaid, That the estates both 

of resident and non-resident proprietors in the said territory, dying 

intestate, shall descend to, and be distributed among, their children and 

the descendants of a deceased child in equal parts, the descendants of a 

» J. R. Tucker, The Constitution, ii, 604. 



260 THE AMERICAN CONSTITUTION [Ch. 

deceased child or grandchild to take the share of their deceased parent 
in equal parts among them; and where there shall be no children or 
descendants, then in equal parts to the next of kin, in equal degree; 
and among collaterals, the children of a deceased brother or sister of the 
intestate shall have, in equal parts among them, their deceased parent's 
share; and there shall, in no case, be a distinction between kindred of 
the whole and half blood ; saving in all cases to the widow of the intes- 
tate, her third part of the real estate for life, and one third part of the 
personal estate ; and this law relative to descents and dower, shall remain 
in full force until altered by the legislature of the district. And until the 
governor and judges shall adopt laws as hereinafter mentioned, estates 
in the said territory may be devised or bequeathed by wills in writing, 
signed and sealed by him or her in whom the estate may be, (being of 
full age,) and attested by three witnesses; and real estates may be con- 
veyed by lease and release, or bargain and sale, signed, sealed, and de- 
livered by the person, being of full age, in whom the estate may be, 
and attested by two witnesses, provided such wills be duly proved, and 
such conveyances be acknowledged, or the execution thereof duly 
proved, and be recorded within one year after proper magistrates, 
courts, and registers shall be appointed for that purpose; and personal 
property may be transferred by delivery, saving, however, to the French 
and Canadian inhabitants, and other settlers of the Kaskaskies, Saint 
Vincents, and the neighboring villages, who have heretofore professed 
themselves citizens of Virginia, their laws and customs now in force 
among them, relative to the descent and conveyance of property. 

Sec. 3. Be it ordained by the authority aforesaid, That there shall be 
appointed, from time to time, by Congress, a governor, whose commis- 
sion shall continue in force for the term of three years, unless sooner 
revoked by Congress; and he shall reside in the district, and have a free- 
hold estate therein, in one thousand acres of land, while in the exercise 
of his office. 

Sec. 4. There shall be appointed from time to time, by Congress, a 
secretary, whose commission shall continue in force for four years, unless 
sooner revoked ; he shall reside in the district, and have a freehold estate 
therein, in five hundred acres of land, while in the exercise of his office. 
It shall be his duty to keep and preserve the acts and laws passed by the 
legislature, and the public records of the district, and the proceedings 
of the governor in his executive department, and transmit authentic 
copies of such acts and proceedings every six months to the Secretary of 
Congress. There shall also be appointed a court, to consist of three 
judges, any two of whom to form a court, who shall have a common- 
law jurisdiction, and reside in the district, and have each therein a free- 
hold estate, in five hundred acres of land, while in the exercise of their 
offices; and their commissions shall continue in force during good be- 
havior. 

Sec. 5, The governor and judges, or a majority of them, shall adopt 
and publish in the district such laws of the original states, criminal and 
civil, as may be necessary, and best suited to the circumstances of the 



IX.] AFRICAN SLAVERY AND ITS CONSEQUENCES 261 

district, and report them to Congress from time to time, which laws shall 
be in force in the district until the organization of the general assembly 
therein, unless disapproved of by Congress; but afterwards the legis- 
lature shall have authority to alter them as they shall think fit. 

Sec. 6. The governor, for the time being, shall be commander-in- 
chief of the militia, appoint and commission all officers in the same 
below the rank of general officers ; all general officers shall te appointed 
and commissioned by Congress. 

Sec. 7. Previous to the organization of the general assembly, the 
governor shall appoint such magistrates, and other civil officers, in 
each county or township, as he shall find necessary for the preservation 
of the peace and good order in the same. After the general assembly 
shall be organized, the powers and duties of magistrates and other civil 
officers shall be regulated and defined by the said assembly; but all 
magistrates and other civil officers, not herein otherwise directed, shall, 
during the continuance of this temporary government, be appointed by 
the governor. 

Sec. 8. For the prevention of crimes and injuries, the laws to be 
adopted or made shall have force in all parts of the district, and for the 
execution of process, criminal and civil, the governor shall make proper 
divisions thereof; and he shall proceed, from time to time, as circum- 
stances may require, to lay out the parts of the district in which the 
Indian titles shall have been extinguished, into counties and townships, 
subject, however, to such alterations as may thereafter be made by the 
legislature. 

Sec. 9. So soon as there shall be five thousand free male inhabitants, 
of full age, in the district, upon giving proof thereof to the governor, 
they shall receive authority, with time and place, to elect representa- 
tives from their counties or townships, to represent them in the general 
assembly: Provided, That for every five hundred free male inhabitants 
there shall be one representative, and so on, progressively, with the 
number of free male inhabitants, shall the right of representation in- 
crease, until the number of representatives shall amount to twenty -five; 
after which the number and proportion of representatives shall be regu- 
lated by the legislature : Provided, That no person be eligible or quali- 
fied to act as a representative, unless he shall have been a citizen of one 
of the United States three years, and be a resident in the district, or 
unless he shall have resided in the district three years; and, m either 
case, shall likewise hold in his own right, in fee-simple, two hundred 
acres of land within the same: Provided also, That a freehold in fifty 
acres of land in the district, having been a citizen of one of the states, 
and being resident in the district, or the like freehold and two years' 
residence in the district, shall be necessary to qualify a man as an 
elector of a representative. 

Sec. id. The representatives thus elected shall serve for the term of 
two years; and in case of the death of a representative, or removal from 
office, the governor shall issue a writ to the county or township, for 
which he was a member, to elect another in his stead, to serve for the 
residue of the term. 



262 THE AMERICAN CONSTITUTION ICh. 

Sec. II. The general assembly, or legislature, shall consist of the 
governor, legislative council, and a house of representatives. The legis- 
lative council shall consist of five members, to continue in office five 
years, unless sooner removed by Congress; any three of whom to be a 
quorum; and the members of the council shall be nominated and ap- 
pointed in the following manner, to wit: As soon as representatives shall 
be elected, the governor shall appoint a time and place for them to meet 
together, and when met they shall nominate ten persons, resident in 
the district, and each possessed of a freehold in five hundred acres of 
land, and return their names to Congress, five of whom Congress shall 
appoint and commission to serve as aforesaid ; and whenever a vacancy 
shall happen in the council, by death or removal from office, the house 
of representatives shall nominate two persons, qualified as aforesaid, 
for each vacancy, and return their names to Congress, one of whom 
Congress shall appoint and commission for the residue of the term; 
and every five years, four months at least before the expiration of the 
time of service of the members of the council, the said house shall nom- 
inate ten persons, qualified as aforesaid, and return their names to Con- 
gress, five of whom Congress shall appoint and commission to serve as 
members of the council five years, unless sooner removed. And the 
governor, legislative council, and house of representatives shall have 
authority to make laws in all cases for the good government of the dis- 
trict, not repugnant to the principles and articles in this ordinance 
established and declared. And all bills, having passed by a majority in 
the house, and by a majority in the council, shall be referred to the 
governor for his assent; but no bill, or legislative act whatever, shall 
be of any force without his assent. The governor shall have power to 
convene, prorogue, and dissolve the general assembly when, in his 
opinion, it shall be expedient. 

Sec. 12. The governor, judges, legislative council, secretary, and 
such other officers as Congress shall appoint in the district, shall take 
an oath or affirmation of fidelity, and of office ; the governor before the 
President of Congress, and all other officers before the governor. As 
soon as a legislature shall be formed in the district, the council and 
house assembled, in one room, shall have authority, by joint ballot, to 
elect a delegate to Congress, who shall have a seat in Congress, with a 
right of debating, but not of voting, during this temporary government. 

Sec. 13. And for extending the fundamental principles of civil and 
religious liberty, which form the basis whereon these republics, their 
laws and constitutions, are erected; to fix and establish those principles 
as the basis of all laws, constitutions, and governments, which forever 
hereafter shall be formed in the said territory ; to provide, also, for the 
establishment of states, and permanent government therein, and for 
their admission to a share in the federal councils on an equal footing 
with the original states, at as early periods as may be consistent with 
the general interest: 

Sec. 14. It is hereby ordained and declared, by the authority afore- 
said, that the following articles shall be considered as articles of com- 



IX.] AFRICAN SLAVERY AND ITS CONSEQUENCES 263 

pact, between the original states and the people and states in the said 
territory, and forever remain unalterable, unless by common consent, 
to wit: 

ARTICLE I 

No person, demeaning himself in a peaceable and orderly manner, 
shall ever be molested on account of his mode of worship, or religious 
sentiments, in the said territories. 

ARTICLE II 

The inhabitants of the said territory shall always be entitled to the 
benefits of the writ of habeas corpus, and of the trial by jury; of a pro- 
portionate representation of the people in the legislature; and of judicial 
proceedings according to the course of the common law. All persons 
shall be bailable, unless for capital offenses, where the proof shall be 
evident, or the presumption great. All fines shall be moderate ; and no 
cruel or unusual punishments shall be inflicted. No man shall be de- 
prived of his liberty or property but by the judgment of his peers, or the 
law of the land, and should the public exigencies make it necessary, for 
the common preservation, to take any person's property, or to demand 
his particular ser\'ices, full compensation shall be made for the same. 
And, in the just preservation of rights and property, it is understood 
and declared, that no law ought ever to be made or have force in the 
said territory, that shall, in any manner whatever, interfere with or 
affect private contracts, or engagements, bona fide, and without fraud 
previously formed. 

ARTICLE III 

Religion, morality, and knowledge being necessary to good govern- 
ment and the happiness of mankind, schools and the means of educa- 
tion shall forever be encouraged. The utmost good faith shall always 
be observed towards the Indians ; their lands and property shall never 
be taken from them without their consent ; and in their property, rights, 
and liberty they never shall be invaded or disturbed, unless in just and 
lawful wars authorized by Congress; but laws founded in justice and 
humanity shall, from time to time, be made, for preventing wrongs being 
done to them, and for preserving peace and friendship with them. 

ARTICLE IV 

The said territory, and the States which may be formed therein, shall 
forever remain a part of this confederacy of the United States of America, 
subject to the Articles of Confederation, and to such alterations therein 
as shall be constitutionally made ; and to all the acts and ordinances of 
the United States in Congress assembled, conformable thereto. The 
inhabitants and settlers in the said territory shall be subject to pay a 
part of the federal debts, contracted, or to be contracted, and a pro- 
portional part of the expenses of government to be apportioned on them 



264 THE AMERICAN CONSTITUTION [Ch. 

by Congress, according to the same common rule and measure by which 
apportionments thereof shall be made on the other states; and the taxes 
for paying their proportion shall be laid and levied by the authority and 
direction of the legislatures of the district, or districts, or new states, as 
in the original states, within the time agreed upon by the United States 
in Congress assembled. The legislatures of those districts, or new states, 
shall never interfere with the primary disposal of the soil by the United 
States in Congress assembled, nor with any regulations Congress may 
find necessary for securing the title in such soil to the bona-fide pur- 
chasers. No tax shall be imposed on lands the property of the United 
States; and in no case shall non-resident proprietors be taxed higher 
than residents. The navigable waters leading into the Mississippi and 
Saint Lawrence, and the carrying-places between the same, shall be 
common highways, and forever free, as well to the inhabitants of the 
said territory as to the citizens of the United States, and those of any 
other states that may be admitted into the Confederacy, without any 
tax, impost, or duty therefor. 

ARTICLE V 

There shall be formed in the said territory not less than three nor 
more than five states; and the boundaries of the states, as soon as 
Virginia shall alter her act of cession and consent to the same, shall 
become fixed and established as follows, to wit: The western state, in 
the said territory, shall be bounded by the Mississippi, the Ohio, and the 
Wabash Rivers ; a direct line drawn from the Wabash and Post Vin- 
cents, due north, to the territorial line between the United States and 
Canada; and by the said territorial line to the Lake of the Woods and 
Mississippi. The middle state shall be bounded by the said direct 
line, the Wabash from Post Vincents to the Ohio, by the Ohio, by a 
direct line drawn due north from the mouth of the Great Miami to the 
said territorial line, and by the said territorial line. The eastern state 
shall be bounded by the last-mentioned direct line, the Ohio, Pennsyl- 
vania, and the said territorial line : Provided, however, And it is further 
understood and declared, that the boundaries of these three states shall 
be subject so far to be altered, that, if Congress shall hereafter find it 
expedient, they shall have authority to form one or two states in that 
part of the said territory which lies north of an east and west line drawn 
through the southerly bend or extreme of Lake Michigan. And when- 
ever any of the said states shall have sixty thousand free inhabitants 
therein, such state shall be admitted, by its delegates, into the Congress 
of the United States, on an equal footing with the original states, in all 
respects whatever ; and shall be at liberty to form a permanent consti- 
tution and state government: Provided, The constitution and govern- 
ment, so to be formed, shall be republican, and in conformity to the 
principles contained in these articles, and, so far as it can be consistent 
with the general interest of the Confederacy, such admission shall be 
allowed at an earlier period, and when there may be a less number of 
free inhabitants in the state than sixty thousand. 



IX.1 AFRICAN SLAVERY AND ITS CONSEQUENCES 265 

ARTICLE VI 

There shall be neither slavery nor involuntary servitude in the said 
territory, otherwise than in the punishment of crimes, whereof the party 
shall have been duly convicted : Provided always, That any person es- 
caping into the same, from whom labor or service is lawfully claimed in 
any one of the original states, such fugitive may be lawfully reclaimed, 
and conveyed to the person claiming his or her labor or service as afore- 
said. 

Be it ordained by the authority aforesaid, That the resolutions of the 23d 
of April, 1784, relative to the subject of this ordinance, be, and the same 
are hereby, repealed, and declared null and void. 

Done by the United States, in Congress assembled, the 13th day of 
July, in the year of our Lord 1787, and of their sovereignty and inde- 
pendence the twelfth.^ 

It is impossible to consider the terms of the foregoing en- Colonists and 

actment which laid the foundation of our colonial system constitution 

t . 1 1 r -If .01 mother 

without bemg impressed with the fact that its draftsmen, in state. 

obedience to a principle universal in the ancient and modern 
world, 2 excluded the colonists from all right to participate in the 
constitution of the mother state, save so far as particular pro- 
visions of it might be extended to them as a matter of grace and 
not as a matter of right. Really the only connection between 
the colonial government of the Northwest and the legislature 
of the parent state was through "a delegate to Congress, who 
shall have a seat in Congress, with a right of debating, but not 
of voting." The rank heresy of a later time, that "the Consti- 
tution follows the flag," finds nothing but refutation in the 
terms of the acts through which our early colonial systems were 
organized. The fundamental principle upon which all of them 
rests is that the Constitution is the exclusive possession of the 
fully organized states. That fact was emphasized with pecul- 
iar force in the case of American Ins. Co. v. Canter,^ in which 
it was held that a territorial court whose judges hold their 
offices for four years cannot be a court of the United States 

^ Wallace v. Parker, 6 Pet. 680; dean v. Hanes, 21 Wall. 521 ; Morton 

Jones V. Van Zandt, 5 How. 215; v. Nebraska, 21 Wall. 660. 
Strader et al. v. Graham, 10 How. * See the author's article on that 

82 ; Pennsylvania v. Wheeling Bridge subject, entitled " Is Colonization a 

Company, 18 How. 421; Bates v. Crime." The North American Review, 

Brown, 5 Wall. 710; Messenger v. October, 1906. 
Mason, 10 Wall. 507; Clinton et al. ' I Pet. 511. 

V. Englebrecht, 13 Wall. 434; Laag- 



266 



THE AMERICAN CONSTITUTION 



[Ch. 



Marshall 
explains the 
rclatiuu. 



1 nsiilar Tariff 
I'ast's, 1900. 



Certjdn con- 
stitutional 
provisions 
applicable to 
all t«ritory. 



within the meaning of the Constitution, because that provides 
tliat the judges shall hold their offices during good behavior. 
As Marshall, C. J., has expressed it: "We have only to pursue 
this subject one step further, to perceive that this provision 
of the Constitution does not apply to it. The next sentence de- 
clares that ' tlie judges both of the supreme and inferior courts 
sliall hold thoirotVices during good behavior.' The judgesof the 
superior courts of Florida hold their offices for four years. 
The courts, then, are not constitutional courts, in which the 
judicial power conferred by the Constitution on the General 
Government can be deposited. They are incapable of receiving 
it. They are legislative courts, created in virtue of the general 
right of sovereigt\ty which exists in the Government, or in 
virtue of that clause which enables Congress to make all need- 
ful rules ai\d regulations, respecting tiie territory belonging 
to the ITnited States." In a word, the colonies or territories 
of the Ihiited States arc gcnornoil. as all other colonies in the 
world's history ha\o Incn goMMt\cd, by the parent state, 
without ti\e right io pat ticlpate in its (.Constitution. The whole 
subject has been most exhaustively reviewed by the Supreme 
Court in what are known as the Insular TaritT Cases (igoo).^ 
In the case of Downes v. Bidwell, it was expressly held that 
incorpoiation into the Ihiited States of territory acquired by 
troatx ov cession, in which there are conditions against the 
iiuiM potation of the territory until Congress provides there- 
for, will not take place until in the wisdom of Congress it 
is deemed that the acquired territory has reached that state 
where it is proper that it should enter into and form a part of 
the American family. Until the fiat is given by Congress, no 
territory can pass from a colonial or territorial condition into 
that full statehood which alone confers tlie right to participate 
in the national Constitution. However, there are certain pro- 
visions of the Constitution applicable to all territory governed 
by Congress, whether incorporatixi into the llnittxi States or 
not. because only subject to the limitations they contain can 
Congress act at all. In the words of the Court: "It does not 
follow that in the mean time, awaiting the decision, the people 
are in the matter of personal rights unprotected by the pro- 
visions of our Constitution and subject to the merely arbitrary 
» 183 U.S. 1-391. 



IX.1 AFRICAN SLAVERY AND ITS CONSEQUENCES 267 

control of Congress. Even if regarded as aliens, they are en- 
titled under the principles of the Constitution to be protected 
in life, liberty, and property." ^ 

It must also be observed that the charter of our first colony Restricted 
conferred the right of suffrage with this serious limitation: ",^j °g. 
" Provided also, that a freehold in fifty acres of land in the dis- 
trict, having been a citizen of one of the states, and being a 
resident in the district, or the like freehold and two years' resid- 
ence in the district, shall be necessary to qualify a man as an 
elector of a representative." At the time of the severance of 
the colonies from the mother country the total number of elect- 
ors in the British Isles was only about 400,cxx), a condition of 
things that continued down to the Reform Bill of 1832.^ The 
English idea that the right to vote was the privilege of the 
property-holding few became the rule in the constitutions of 
the older states, and from them it passed into our first terri- 
torial possessions. In making the second Constitution the states 
reserved to themselves very jealously the right to regulate right of a state 
the suffrage. The National House of Representatives is based *° '^^"'""^^ '*• 
upon population, but when its members are to be chosen, " the 
electors in each state shall have the qualifications requisite for 
electors of the most numerous branch of the state legislature." 
If a state does not violate the rule of the Fifteenth Amendment 
as to "race, color, or previous condition of servitude," it may 
vest the election of the most numerous branch of its legis- 
lature in a little oligarchy, qualified, if it so pleases, by a very 
high property or other exacting qualification. Manhood suf- 
frage in this country rests upon no guarantee that the states 
may not at any time set aside. 

At the moment the old Congress was completing at New Death of the 
York this great compact involving the future of slavery, the °^^ Congress. 
Convention at Philadelphia was in the midst of the death- 
grapple between the larger and smaller states as to the organ- 
ization of the two branches of the new federal legislature. 
From that time onward the mildly sovereign body of the Con- 
federation, having now performed its last and by far its most 
notable legislative act, began to dwindle in public interest. 

* Citing Yick Wo r. Hopkins, 118 * See The Origin and Growth of 

U. S. 356; Fong Yue Ting V. United the English Constitution, ii, 531. 
States, 149 U.S. 698, and other cases. 



268 



THE AMERICAN CONSTITUTION 



[Ch. 



Passed its last 
act October 
10, 1788. 



The Ohio 
Company. 



It really performed its last important function when, after the 
reading, on September 28, of the report from the Federal Con- 
vention, it transmitted the result of its labors to the several 
state executives, to be by them submitted "to a convention of 
delegates, chosen in each state by the people thereof, under 
the recommendation of its legislature for their assent and rati- 
fication." * Madison, after completing his labors at Philadel- 
phia, resumed his seat in Congress on October 8 ; and when he 
was joined for a time by Alexander Hamilton on February 23, 
1788, they were the only men of note in the body. After linger- 
ing through the summer, it passed its last act on October 10. 
Only two members attended on November 3. From that time 
onward "a few members would have their names recorded 
as present each day. On March 2 (1789), Philip Pell of New 
York attended alone, and the Congress was dead. It was never 
adjourned, and had no formal dissolution. The faithful secre- 
tary, Charles Thompson, wrote the last entry in the Journal, 
and he and the forgotten Mr. Pell were the sole spectators 
of the end. People had forgotten that the Congress still lin- 
gered, for attention was concentrated upon the new Congress 
called to meet March 4th." ^ And here it should be said that 
before the old order of things passed away "the Ohio Com- 
pany " — whose organization began in January, 1786, with the 
invitation published by Putnam and Tupper in the newspapers 
of Massachusetts to all who desired to unite for purchasing 
and colonizing a large area between the Ohio and Lake Erie 
— was prepared at a meeting of subscribers held on March 8, 
1787, at Boston, to elect Parsons, Putnam, and Cutler direct- 
ors, in order that they might draft a memorial ^ to Congress 
for a purchase of lands adequate to the wants of the under- 
taking. With matters thus arranged beforehand, the agents 
of the Ohio Company, so soon as the Ordinance of 1787 was 
passed, rapidly settled the terms of a sale with the United 
States, substantially on the basis of the report of Carrington.* 

ninth, 1787. Referred to Mr. Car- 
rington, Mr. King, Mr. Dane, Mr. 
Madison, Mr. Benson. Acted on 
July 23, 1787. See committee book." 
Vol. xli. Papers of the Old Congress; 
vol. viii, 226, of the Memorials. 

* Cf. Journals of Congress, iv, 
Appendix 17. 



^ Journals of Congress, iv, 782. 

* Gaillard Hunt, Life of Madison, 
p. 168. 

* The memorial, in the handwrit- 
ing of Parsons, is indorsed, "Me- 
morial of Samuel H. Parsons, agent 
of the associators for the purchase 
of lands on the Ohio. Read May 



IX.] AFRICAN SLAVERY AND ITS CONSEQUENCES 269 

Old soldiers of the best character whom the war had impover- 
ished were ready to go at once. "No colony in America," 
said Washington, "was ever settled under such favorable cir- 
cumstances as that which has just commenced at Muskingum. 
Information, property, and strength will be its characteris- 
tics." ^ In its petition the Ohio Company asked for nothing 
better than that its settlers should be "under the immediate 
government of Congress in such mode and for such time as 
Congress shall judge proper." 

In a notable speech delivered in 1829, Daniel Webster said: Webster's 
"At the foundation of the constitution of these new north- ^ ^'®' 
western states, we are accustomed, sir, to praise the lawgivers 
of antiquity ; we help to perpetuate the fame of Solon and 
Lycurgus ; but I doubt whether one single law of any lawgiver, 
ancient or modern, has produced efifects of more distinct, 
marked, and lasting character than the Ordinance of 1787." ^ 
While Madison warmly commended the Act, he said that Con- Madison's 
gress did it "without the least color of constitutional author- ^^ ^^^^°^' 
ity," — as the Articles of Confederation contemplated no occa- 
sion for such an assertion of sovereignty, and as the Ordinance 
was never submitted to the states for ratification. "A great 
and independent fund of revenue," said Madison, "is passing 
into the hands of a single body of men, who can raise troops 
to an indefinite number, and appropriate money for their sup- 
port for an indefinite period of time." Apart from the sound- 
ness or unsoundness of such views, these uncontrovertible facts 
stand out as the most remarkable in our constitutional his- 
tory. The greatest of the slaveholding states really won the 
Northwest from Great Britain during the war of the Revolu- 
tion; when she ceded it on March i, 1784, "Virginia gave up Virginia's 
a magnificent and princely territory of which she was actually ^^^' 

in possession." Instantly her leading statesman in Congress, 
Jefferson, proposed a form of territorial government to be based 
on the stipulation "that, after the year 1800, there shall be 
neither slavery nor involuntary servitude in any of the said 
states, otherwise than in punishment of crimes, whereof the 
party shall have been convicted"; in 1787 the Ordinance was 
passed with that stipulation as its corner-stone, the same having 

1 Sparks, ix, 385. 

' See Benton's Thirty Years' View, i, 134. 



270 



THE AMERICAN CONSTITUTION 



[Ch. 



The Northwest 
dedicated by 
the South to 
freedom. 



Jefferson's 
plan for the 
extinction of 
slavery. 



been put into it by amendment, after the first reading, at the 
suggestion of the Southern States, which voted for it unanim- 
ously. As Pennsylvania and three states of New England were 
absent, the passsage of the Ordinance without the votes of the 
Southern States was an impossibility.^ 

How can the fact be explained that the slaveholding South 
thus deliberately dedicated to the cause of freedom the vast 
domain out of which five great states were to arise? What 
was the influence that induced Virginia, after dedicating 
this princely heritage to the new nationality, to propose that 
her own citizens should not be permitted to settle within 
its limits if they took their slaves with them? The answer, 
and the only one, has been given by a clear-visioned and 
unsectional Northern historian. John Fiske^ hit the mark 
when he said: "It was not the nomenclature that stood 
in the way of Jefferson's scheme, but the wholesale way in 
which he tried to deal with the slavery question. He wished 
to hem in the probable extension of slavery by an impassable 
barrier, and accordingly he not only provided that it should 
be extinguished in the Northwestern Territory after the year 
1800, but at the same time his anti-slavery ardor led him to 
try to extend the national domain southward. He did his best 
to persuade the legislature of Virginia to crown its work by 
giving up Kentucky to the United States, and he urged that 
North Carolina and Georgia should also cede their western 
territories. As for South Carolina, she was shut in between the 
two neighboring states, in such wise that her western claims 
were vague and barren. Jefferson would thus have drawn a 
north-and-south line from Lake Erie down to the Spanish 
border of the Floridas, and west of this line he would have had 
all negro slavery end with the eighteenth century. ^ The policy 
of restricting slavery, so as to let it die a natural death within 
a narrowly confined area, — the policy to sustain which Mr. 
Lincoln was elected President, in i860, — was thus first 



^ Such is Bancroft's testimony, 
ii, 112, 115-116. 

* The Critical Period, 198. 

* "The passage relating to the 
slave trade was stricken out from 
the original draft of the Declaration 
of Independence, as Jefferson testi- 



fied, not only because of 'deference 
to Southern delegates,' but 'be- 
cause our Northern brethren, being 
considerable carriers of slaves to 
others, were a little sensitive on that 
point.' — Ed." Johnston, Am. Pol. 
Hist., p. 45, note i. (Woodburn ed.) 



IX.] AFRICAN SLAVERY AND ITS CONSEQUENCES 271 

definitely outlined by Jefferson in 1784. It was the policy 
of forbidding slavery in the national territory. Had this 
policy succeeded then, it would have been an ounce of pre- It failed 
vention worth many a pound of cure. But it failed because P^^^^^o^ 
of its largeness, because it had too many elements to deal 
with." 

Its first effort, however, was completely successful. Jefferson 
— supported by the strong anti-slavery feeling existing in Vir- 
ginia and North Carolina at the close of the eighteenth cen- 
tury — was able, with the help of such men as George Mason, 
Grayson, and Chancellor Wythe (who emancipated his slaves 
towards the close of his life), to induce the South to dedicate 
the Northwestern Territory to freedom. But after the line was 
once drawn, after the Union was once divided into two great 
areas, — the one dedicated to slavery, the other to freedom, — 
the irrepressible conflict became inevitable. Out of that condi- The irrepress- 
tion of things grew up a contest between the free and the slave ' ^ ^° ^*" 
states for control of the Government, the South wishing to 
extend the area of slavery by the admission of new slave states, 
the North seeking to confine the institution to the localities 
in which it already existed, while the Abolitionists of the 
North wished to extinguish it altogether. 

From the time "the compromises" were entered into in the A slave state 
Federal Convention of 1787, the opposing forces rested on their ^°^ ?■ ^'^^ 
arms under a rule which admitted a slave state and a free by turns, 
state by turns, so as to preserve the balance of power in Con- 
gress as the new Constitution had fixed it at the outset. The 
first impulse of the Convention was to admit only those new 
states " lawfully arising within the limits of the United States," 
with the consent of two thirds of each House of Congress. 
Gouverneur Morris widened that idea, however, when he pro- 
posed that "new states may be admitted by the legislature 
into the Union," with the clear understanding that a majority 
vote might introduce foreign territory as a state into the 
Union. But when Maryland moved to grant unlimited legis- introduction 
lative power to dismember old states, she was supported only of foreign 
by Delaware and New Jersey. In order to remove from Ver- ^^ °^' 
mont the necessity of applying to New York for consent to 
enter the Union, for the reason that she had once been included 
within her "limits," that word was supplanted by the word 



272 



THE AMERICAN CONSTITUTION 



[Ch. 



The first 
census, 1790: 
freemen and 
slaves. 



" Persons held 
to service or 
labor." 



Gradual 
abolition of 
slavery in 
the North. 



Admission of 
Vermont, 1791. 



"jurisdiction," which obviated the difficulty.^ Thus the way 
was opened for the entry of the first new state, Vermont, in 
1791. 

From the first census, taken the year before, we learn that 
the population of the United States was 3,929,326, in which 
were included 697,681 slaves. Of that total, Virginia possessed 
292,627. Next came South Carolina, closely followed by Mary- 
land and North Carolina.'^ As originally established in the col- 
onies, slavery everywhere existed by custom and not by law. 
The state statutes subsequently passed on the subject simply 
regulated a preexisting relation. While the slaves had come 
as chattels, and not as persons having a standing in law, which 
fastened the condition upon their children, their status was not 
defined in such abject terms by the new Constitution. In it 
slaves were described as "persons held to service or labor, 
under the laws of any state." They were thus recognized as 
persons from whom the positive laws of some of the states 
withheld personal rights for the time being. In response to that 
feeling, most of the Northern States were already on the way 
toward the abolition of slavery. Vermont never permitted it. 
Massachusetts had eliminated it by a judicial decree that held 
it was in conflict with her new constitution of 1780. While 
other states north of Virginia finally abolished it, it was done 
so gradually that in i860 a last remnant survived in the form 
of eighteen apprentices for life in New Jersey. Moving in 
harmony with the Wilberforce propaganda against the slave 
trade, the Constitution had fixed 1808 as the certain limit of its 
life; and by 1804 all of the states had passed laws forbidding 
the importation of slaves from abroad. When South Carolina 
repealed such an act, Congress, in 1804, would have imposed 
the ten dollars tax at once, but for assurances that in due time 
the prohibiting act would be renewed. 

Such were the general conditions existing at or about the 
time of the admission of Vermont, — "the New Hampshire 



* Madison Papers, ii, 794, 861, 
903, 1224, 1240; iii, 1456, 1458, 
1462, 1558, 1589, 1620. 

' See A Century of Population 
Growth in the United States, 1790- 
igoo, p. 47. There it is stated that 
"an examination of the original 



manuscript returns shows that there 
never were any slaves in Vermont. 
The original error occurred in pre- 
paring the results for publication, 
when 16 persons, returned as 'free 
colored,' were classified as 'slave.' " 



IX.j AFRICAN SLAVERY AND ITS CONSEQUENCES 273 

grants," — territory which both New Hampshire and New 
York had claimed. While the admission of Vermont was being 
discussed in the old Congress in 1782, Madison said that the 
opposition to it which came from Virginia, North Carolina, 
South Carolina, and Georgia was based on these grounds: 
" 1st. An habitual jealousy of a predominance of Eastern inter- 
est. 2nd. The opposition expected from Vermont to Western 
claims. 3rd. The inexpediency of admitting so unimportant a 
state to an equal vote in deciding on peace, and all the other 
grand interests of the Union now depending. 4th. The influ- 
ence of the example on a premature dismemberment of the 
other states." ^ Such considerations, potent in their influence 
on the politics of the old Congress, were now overruled; and 
Vermont, the only state that had never permitted slavery, a 
state sovereign and independent during the Revolution, was 
admitted in 179 1, as such, and not as formed out of any other 
state. Thus a precedent was made for the admission at a later Precedent for 
time of Texas, which had established its independence, and was ^™^s^°° °^ 
admitted into the Union, despite the fact that it was not carved 
out of the territory of any state belonging thereto. As large 
areas of foreign territory were to be purchased, it was import- 
ant to settle the fact that independent commonwealths exist- 
ing or built up thereon could be admitted into the Union as 
states. The yoke-fellow of Vermont was Kentucky, admitted Kentucky 
in 1792, with a slave population estimated in 1790 at 12,430, tai792. 
out of a total of 73,677. To the jurist the admission of Ken- 
tucky is of special interest because of the compact entered 
into between Virginia and Kentucky, which provided that all 
private rights and interests in lands within Kentucky, derived 
from the laws of Virginia prior to the separation, should remain 
"valid and secure" under the laws of Kentucky, and should be 
determined by the laws existing on December 18, 1789, in Vir- 
ginia. Thus by compact, authorized by Article i. Section 10, 
Clause 3, of the Constitution, a mother state has been able to 
perpetuate a part of her code of land law in a younger state 
formed from her domain. ^ The admission of Tennessee in 1796 ^^^^ Qhio, 
was counterbalanced by the admission of Ohio in 1803, — the 1803. 

* Madison Papers, i, 123. United States, in which the con- 

' The author is now engaged in struction of that compact is an 
a case in the Supreme Court of the important factor. 



274 



THE AMERICAN CONSTITUTION 



[Ch. 



Louisiana 
Purchase, 
1803. 



Jefferson's 

mental 

difficulty. 



Idea of 

nationality 
promoted. 



Article in 
of the treaty 
of 1803. 



former being carved from the slave soil of North Carolina, the 
latter from the free soil of the Northwest Territory, which thus 
contributed its first state. 

During the ten years that were to intervene before another 
state was admitted, the famous Louisiana Purchase, made by 
Jefferson from Napoleon in 1803, doubled the national domain 
by an addition of 1,124,685 square miles, and secured to us the 
free navigation of the Mississippi, which French and Spanish 
intrigue had demonstrated as essential to the retention of the 
permanent loyalty of the West. From the end of the Revolu- 
tionary War down to about 1825, the danger of European 
aggression was a serious factor in the politics of this country. 
Out of that danger grew the famous Monroe Doctrine, designed 
to protect us as far as possible from such complications.^ Con- 
stitutional lawyers of to-day do not consider seriously Jeffer- 
son's mental difficulty as to the right of this government to 
acquire new territory and to carve new states out of the same. 
In seizing a great opportunity, which gave us a real place in the 
family of nations, he did well to ignore a doubt that should 
never have existed.^ The purchase was a brilliant act of 
diplomacy. "The news of the transfer of Louisiana was like 
a thunder-stroke for the cabinet at Madrid, who then per- 
ceived the enormous fault it had committed in sacrificing the 
safety of Mexico. Florida, enclosed on both sides by the United 
States, was separated in the middle from the Spanish domin- 
ions, and would fall on the first occasion into the hands of its 
neighbors." ^ No other event in our national history has done 
more to promote the idea of nationality than this purchase, 
made by the leader of the states' rights school, in disregard of 
his own principles. The purchase of this territory beyond our 
original limits, and the carving out of it of new states armed 
with the power to determine their own institutions, whether 
they should be slave or free, led to a new phase of the slavery 
controversy, and to the final triumph of the congressional and 
national powers arrayed against it. Article iii of the treaty of 



^ See Taylor's International Pub- 
lic Law, 140-152, 416-418. 

" As to the rights of the House 
of Representatives when a purchase 
is made of foreign territory, see 
Ibid. 392. As to the right of the na- 



tion to acquire and hold such terri- 
tory, see Downes v. Bidwell, 182 
U. S. 244. 

* Johnston, Am. Political History, 
part i, p. 265. 



IX.] AFRICAN SLAVERY AND ITS CONSEQUENCES 275 

April 30, 1803, provided that "the inhabitants of the ceded 
territory shall be incorporated in the Union of the United 
States, and admitted as soon as possible, according to the 
principles of the Federal Constitution, to the enjoyment of all 
rights, advantages, and immunities of citizens of the United 
States; and in the mean time they shall be maintained and pro- 
tected in the free enjoyment of their liberty, property, and the 
religion which they profess." An Actwas approved on October 
31, 1803, "to enable the President of the United States to 
take possession of the territory ceded by France to the United 
States by the treaty concluded at Paris on the 30th of April 
last, and for the temporary government thereof." On March 
26, 1804, an Actwas passed dividing the "Province of Louisi- Province of 
ana" into Orleans Territory on the south and the District of ^^'fd'Tso'"' 
Louisiana to the north. That Act extended over the Territory 
of Orleans a large number of the general laws of this country, 
and provided a form of government, for the purposes of which 
the District of Louisiana was attached to the Territory of Indi- 
ana, which had been carved out of the Northwest Territory. 
The territorial government of Orleans, with the exception of the 
prohibition of slavery, was a substantial copy of the colonial 
system created by the Ordinance of 1787. On March 2, 1805, 
an Act was approved whose first section expressly provided 
that the Territory of Orleans "shall be entitled to and enjoy 
all the rights, privileges, and advantages secured by the said 
ordinance, and now enjoyed by the people of the Mississippi 
Territory," to which it had been extended.^ The upper part 
of the Province of Louisiana, described in the Act of March 26, 

1804, as the District of Louisiana, and in the Act of March 3, 

1805, as the Territory of Louisiana, was organized as the Terri- 
tory of Missouri on June 4, 18 12.2 By that Act, although the Territory 
Ordinance of 1787 was not in express terms extended over the °^^'f°^ 

' ' ^ ^ ^ organized 

territory, — probably on account of the slavery agitation, — June 4, 1812. 
the inhabitants were accorded substantially all the rights of the 
inhabitants of the Northwest Territory. By the 9th section 
citizenship was in effect recognized, while the 14th contained 
an extended declaration of the rights secured to the people of 
the territory. When the Americans took possession in Decem- 

1 Stat, at Large, p. 550, chap. 28. Downes v. Bidwell, 182 U. S. 327- 
* Ibid., p. 743, chap. 95. See also 334. 



276 



THE AMERICAN CONSTITUTION 



[Ch. 



Civil code 
based oa 
Code 
Napoleon. 



Positive law 
defined. 



Orleans Terri- 
tory admitted 
as a state, 1812. 



ber, 1803, Laussat, the French colonial prefect, declared that 
justice was then administered "worse than in Turkey." But 
an improvement followed the new domination; and in 1808 
the territorial legislature in Orleans adopted a civil code, 
based to a considerable extent on the Code Napol^on.^ Within 
the vast territory thus acquired the new masters found slavery 
already established by custom recognized by French and 
Spanish law, and as Congress tacitly recognized existing con- 
ditions by failing to disturb them, slavery continued to be 
legal, and became universal. Here attention should be directed 
to a serious confusion of thought into which an eminent writer 
on this subject has fallen from a failure to understand what 
really constitutes positive law. Alexander Johnston, in his 
"Political History," has said: "It may be laid down as a fun- 
damental proposition, that negro slavery in the colonies never 
existed or was originally established by law, but that it rested 
wholly on custom. The dictum, so often quoted, that slavery, 
being a breach of natural right, can be valid only by positive 
law, is not true: it is rather true that slavery, where it existed, 
being the creature of custom, required positive law to abolish 
or control it." ^ It is now well settled that from its organiza- 
tion the state, by express or tacit recognition, adopts as laws, 
not only the rules of equity but the entire body of customs that 
come up to a certain standard of general reception and useful- 
ness, in the absence of any specific rule of written law. Hol- 
land has summed up the whole matter in the statement that 
"the humblest village custom is a law which complies with the 
requirement of being enforced by the sovereign." ^ In other 
words, any preexisting custom which the state tacitly recog- 
nizes and enforces by its sovereign authority is positive law. 
In 1810 Louisiana was called "Orleans Territory," the name 
"Louisiana Territory" being then applied to the remainder of 
the Louisiana Purchase, still unorganized. By an Act of Con- 
gress of 181 1 the inhabitants of the former were authorized 
to form a constitution, with the view to the estabhshment of 
a state government. The constitution of 18 12 was framed and 
adopted; and in April of that year Congress passed an Act 
admitting Louisiana, as a slave state, into the Union. 



^ Cf. Taylor, The Science of JuriS' 
prudence, 164-165, 174. 

^ Am. Political History, part ii, p. i. 



• Holland, Jurisprudence, 51; 
Taylor, The Science of Jurisprud- 
ence, 518. . ,- .- 



IX.] AFRICAN SLAVERY AND ITS CONSEQUENCES 277 

The general colonial scheme embodied in the Ordinance of Colonial 
1787, excepting only the anti-slavery clause, was the model i787°a model, 
upon which all the territories were subsequently organized. 
On August 7, 1789, an Act of Congress was passed recognizing 
and confirming the Ordinance with such slight modifications 
as were necessary to make it conform to the new powers of the 
President and Senate. When the territory south of the Ohio 
came to be organized, stipulations were of course made by the 
ceding states that slavery should not be prohibited. In the 
organization of the five states north of the Ohio, the privileges 
granted by the Ordinance were embodied in their constitu- 
tions, usually in a bill of rights. So rapid was the growth 
of population in the Northwest Territory that Congress, in 
1800, divided it, the line running north from the junction of the 
Kentucky with the Ohio, all west of which was to be known 
as the Indiana Territory, In that new division, in 1802, a con- 
vention, presided over by William H. Harrison, attempted to Attempt to 
legalize slavery, through a memorial to Congress asking a i^^^dkna^^"^ 
temporary suspension of the sixth article. But a select com- Territory, 
mittee, with John Randolph as chairman, reported that such 
action would be both dangerous and inexpedient. While in 
1805-07 successive resolutions to the same effect from Gov- 
ernor Harrison and the territorial legislature were respectfully 
considered, the matter was brought to an end by an adverse 
report from a new committee in November, 1807. Thus it was 
settled that Indiana was to be admitted as a free state, as 
she was on April 19, 1816. Ohio had been erected into a separ- Admitted as 
ate territory in 1800; and lUinois was set off in 1809, leaving jg^^^t^^*^ 
Indiana Territory with its present boundaries. An Act of Con- 
gress was passed April 7, 1798, organizing the Territory of 
Mississippi, — its southern boundary being parallel 31 de- 
grees, its northern a line due east from the mouth of the Yazoo 
to the Chattahoochee. As this territory had been annexed 
by the British King to West Florida, it was claimed as common 
property by the Congress of the Confederation under the 
treaty of peace of 1783. As Spain by the treaty of 1795* 
abandoned all claims to this part of the territory, it was 
organized under the Act of 1798, despite Georgia's opposing 

1 As to the boundaries fixed by Real, Oct. 27, 1795, see Fuller, The 
the treaty signed at San Lorenzo el Purchase of Florida, 73 sq. 



278 



THE AMERICAN CONSTITUTION 



[Ch. 



Mississippi 
admitted in 
1817. 



Illinois 
admitted 
in 1818. 



Alabama 
admitted 
in 1819. 



claims, which were finally adjusted by commissioners under the 
Act of April 24, 1802. It was then arranged that Georgia was 
to cede all her western claims for a substantial consideration ; 
all previous titles were to hold good ; and slavery was not to be 
prohibited in the new territory. After that agreement had been 
ratified by Georgia and the United States, the ceded territory 
was added to the Mississippi Territory by Act of March 27, 
1804, subject to a provision for the extinguishment of Indian 
titles in Georgia, by the United States. In 18 12 American 
troops occupied Spanish West Florida, and the district east 
of Pearl River and south of latitude 31 degrees was added to 
the Mississippi Territory, which was divided by the present 
line between Alabama and Mississippi in 1817. On Decem- 
ber 10 of that year Mississippi was admitted as a slave state. 
The statement made heretofore that Indiana was admitted as 
a free state must be attended with the explanation that in 
1807 her legislature enacted laws permitting the owners of 
slaves to bring them into the territory, register them, and 
hold them to service under a certain kind of contract specially 
devised for that purpose. Illinois, being then a part of Indiana 
Territory, lived on under those laws until her admission as 
a state in 181 8, when she provided in her constitution that 
"existing contracts" should be valid. Finally in 1822 an anti- 
slavery man was elected governor; and the result of a vote in 
1823-24 was the abolition of future contracts for service made 
out of the state, or for more than one year. Gradually the dis- 
guised slavery thus created by contract was abolished in 
both states. On March 2, 1819, an Act was passed "to enable 
the people of Alabama Territory to form a constitution and 
state government," and on December 14 of that year she was 
admitted as a slave state. The settlement of Maine goes back 
to 1626, when both Alexander and Gorges were granted lands 
by the Plymouth Company, the latter receiving in 1639 a 
royal charter to reinforce his claims. As Charles I favored the 
Gorges heirs against Massachusetts, whose power over Maine 
had been in abeyance for some years prior to 1668, that state, 
in 1678, in order to strengthen its hold, bought off the Gorges 
claimants. When the Revolution of 1688 brought to Massa- 
chusetts a new charter, it so enlarged her territory southward 
as to take in all Plymouth, and eastward as to embrace Maine 



IX.] AFRICAN SLAVERY AND ITS CONSEQUENCES 279 

(Sagadahoc) and Nova Scotia. Henceforth Maine, including Maine 
Sagadahoc, that is all land eastward to the Saint Croix, re- f^™"^ 
mained a part of Massachusetts until March 15, 1820, when 
it was admitted as a free state. ^ The prelude to that event 
was the "Ohio fever" of 1815-16, by which the state lost 
fifteen thousand of its population. By that time the question 
of separation had become a party issue, the Federalists up- 
holding the claims of Massachusetts, the Republicans contend- 
ing for independence. 

A brief and consecutive review has now been made of the The Missouri 
incorporation into the Union of the ten new states — five free ^o^p^'o™^ 
and five slave — that preceded the admission of Missouri. 
As we look upon the hostile array, with Vermont, Ohio, In- 
diana, Illinois, and Maine, on the one hand, and Kentucky, 
Tennessee, Louisiana, Mississippi, and Alabama on the other, 
it is hard to put aside this weighty statement: "The conven- 
tion of 1787, whose work and plans were mainly confined to the 
fringe of states along the Atlantic Coast, had really joined two 
nations, a slaveholding nation and one which only tolerated 
slavery, into one; but the union was physical, rather than 
chemical, and the two sections retained distinct interests, feel- 
ings, and peculiarities. As both spread beyond the Alleghan- 
ies to the west, the broad river Ohio lay in waiting to be the 
natural boundary between the states in which slavery should 
be legal and those in which it should be illegal. When the tide 
of emigration began to pour across the Mississippi and fill 
the Louisiana Purchase, the dividing-line was lost and the con- 
flict became inevitable."^ Jefferson, who brought to us the new Jefferson's 
arena of conflict, clearly foresaw what that conflict was to be. forebodings. 
He wrote: "The Missouri question is the most portentous 
which has ever threatened the Union. In the gloomiest hour 
of the Revolutionary War I never had apprehensions equal to 
those I feel from this source." His eagle eye could not fail to 
see that in the new realm beyond the Mississippi the battle for Battle for 
slavery was to be fought and lost. Reference has been made slavery to be 

fought beyond 

already to the organization of the upper part of the Louisiana the Mississippi. 
Purchase into the Territory of Missouri by the Act of June 4, 
1812, whose sixteenth section recognized the custom, validated 

^ Cf . Andrews, Hist, of the U. S., ' Johnston, Am. Political History, 

ii 45. 46, 75. 81. part ii, p. no. 



28o 



THE AMERICAN CONSTITUTION 



[Ch. 



Suddenness of 
the conflict. 



Terms of 
the Missouri 
Compromise. 



by French and Spanish law, upon which slavery rested, by con- 
tinuing the territorial laws of Louisiana in the new Territory 
of Missouri. Furthermore reliance was placed upon the third 
article of the treaty, which provided certain guaranties here- 
tofore set forth. The application for admission into the Union 
as a slave state, early in 1818, of the most populous part of 
the Missouri Territory, in which the flourishing institution 
of slavery was thus intrenched, precipitated the consideration 
of the status of the institution beyond the Mississippi, and 
involved Congress in a prolonged, angry, and historic debate. 
The suddenness of the conflict startled the country "like a 
fire-bell in the night," — the words of Jefferson. When on 
February 13, 1819, the House went into Committee of the 
Whole upon the enabling act, Tallmadge of New York offered 
this amendment: "And provided, also, that the further intro- 
duction of slavery or involuntary servitude be prohibited, ex- 
cept for the punishment of crime, whereof the party shall be 
duly convicted; and that all children of slaves, born within 
the said state after the admission thereof into the Union, shall 
be free, but may be held to service until the age of twenty-five 
years." The surface meaning of that amendment was that 
the admission of Missouri as a free state should now offset 
that of Alabama. But there was a deeper meaning. Its ad- 
vocates contended — admitting that slavery did exist in 
the territory by virtue of positive law tacitly recognized by 
Congress — that it was entirely within its province to say, 
as the entire subject-matter was under its control, that the 
territory must enter the Union as a free state or not at all. 
The outcome was the famous Missouri Compromise of 1820, 
in which the Senate agreed to permit the Maine and Missouri 
bills to be voted on separately; the House agreed to give up 
the Tallmadge proviso, and both Houses agreed that Missouri 
should be admitted, with the express understanding "that in 
all that territory ceded by France to the United States, under 
the name of Louisiana, which lies north of 36 degrees 30 min- 
utes north latitude, excepting only such part thereof as is in- 
cluded within the limits of the state contemplated by this Act, 
slavery and involuntary servitude, otherwise than in the pun- 
ishment of crime, whereof the party shall have been duly con- 
victed, shall be and is hereby forever prohibited." Such was 



IX.] AFRICAN SLAVERY AND ITS CONSEQUENCES 281 

the compromise embodied in the amendment of the pro- 
Southern Senator Thomas of IlHnois, of which Henry Clay 
of Kentucky was the potent, zealous, and compelling cham- 
pion. While in the case of Missouri, admitted in 182 1, slavery Missouri 
won the victory, it was at the cost of the pledge that the vast f^ ™"j^ 
bulk of the Louisiana Purchase should be forever dedicated 
to freedom. That pledge was the death-knell of the old system 
of balance between the slave states and the free states, as it 
made inevitable the admission of a larger number of the latter. 
And yet, while limits were thus set to the extension of the area 
to be occupied by slavery, the view was general that each state 
was absolutely sovereign over it within its own borders ; that 
responsibility for it and its abuses ended in each state with its 
own citizens. Such was the real undertone of the doctrine of Extreme 
state sovereignty in the extreme form in which it was taught sovereignty, 
by Calhoun, an extreme culminating at last in the entirely 
illogical and indefensible dogma of Nullification. Ere long, 
quite a contrary view became common in the North, largely 
through the influence of William Lloyd Garrison, who estab- 
lished in 1 83 1 a weekly paper called "The Liberator," which 
was devoted to the entire and immediate abolition of African 
slavery in America. In demanding "immediate and uncondi- 
tional emancipation," Garrison claimed that the question at 
issue was a national one ; that the whole country, and not the 
South only, was guilty in tolerating what he called a curse. 
Thus was the real issue finally made up. 

Fifteen years were to pass by before the admission of the Federalists and 
next state, — Arkansas, in 1836. During that interval there Republicans, 
was a transformation in party organization. At the end of the 
Revolution there was but one party in the United States, 
the American Whigs ; at the end of the Federal Convention of 
1787, when the question at issue was whether the new Consti- 
tution should be ratified by the states, there were two. The 
one was composed of the Federalists, who, desiring a really 
national government, were urging the people to accept the 
work of the Convention; the other was composed of those who 
were wedded to the old provincial idea and distrustful of the 
new experiment as a menace to their local liberties, known as 
Anti-Federalists.* The name afterwards assumed by the Anti- 

^ "We must be careful not to confuse the Anti-Federalists with the 



282 THE AMERICAN CONSTITUTION [Ch. 

Federalists, who, during the year 1792, had become cemented 
into an organized body through their eflForts in resisting the 
Federalists, was Republican from about that time down to 
Hamilton about 1828.* As Hamilton was, at the outset, distinctly the 
as leaders^" leader of the former, so Jefferson was distinctly the leader of 
the latter. Not long after Jefferson's return from the opening 
scenes of the French Revolution, he was ready to hint that 
people of the Hamilton school were, under the cloak of broad 
construction, drifting toward monarchy. Before the summer 
of 1792 he was able to describe in a general way the opposition 
to Hamilton as a "republican" party in contrast to the 
" monarchical " Federalists. In a letter to Washington, of May 
13 of that year, he authoritatively claimed the name by say- 
ing: "The Republican party, who wish to preserve the Govern- 
ment in its present form, are fewer in number [than the mon- 
archical Federalists]." The disappearance of the Federal party 
between 18 15 and 1820 left the Republicans masters of the field. 
In the presidential election of 18 16, the Federalist candidate, 
Rufus King, received only 34 electoral votes against 187 for 
the Republican candidate, James Monroe, who was reelected 
in 1820 by a practically unanimous vote. But in the midst of 
"Era of good this political millennium, known as the "era of good feeling," 
feeling," 1820. ^^ triumphant Republican party became responsible for two 
events (1819-20) — the acquisition of Florida and the admis- 
sion of Missouri as a slave state — which demonstrated that 
its Northern and Southern wings differed from each other with 
a bitterness and intensity that might have divided two hostile 
camps. The so-called era of good feeling ended with the elec- 
tion of John Quincy Adams to the Presidency in 1824; a con- 
test in which there were no recognized parties, political issues 
being so confused that the battle turned chiefly upon the 
personal merits of the candidates, all of whom claimed to be 

Republicans, or Democrats, who 1787." Gordy's Political Parties in 

began to exist as a party about 1791. the United States, i, 92, 93. 

The questions at issue between the ^ The questions that divided the 

two parties in 1791 were entirely Federalists and Republicans during 

different from the single question the administrations of Washington 

which divided the Federalists and and Adams related to foreign affairs, 

Anti-Federalists in 1787. Shall the finance, and the proper construction 

Constitution be adopted? — that of the Constitution, 
was the one question at issue in 



IX.] AFRICAN SLAVERY AND ITS CONSEQUENCES 283 

Republicans. In the presidential canvass of 1828 the two sec- 
tions of the great Republican party assumed the character of 
opposing forces, the supporters of Jackson assuming the name 
of Democrats, while his opponents, who favored the reelection Democrats 
of Adams, were known first as National Republicans, and 1328^*^^^' 
finally as Whigs. Henceforth until 1854, Whig and Democrat 
were the names of the two great political parties of the United 
States. The former, representing many of the views of the 
Federalists, — such as the expenditure of public money on 
internal improvements, a tariff for the protection of manu- 
factures, a larger army and navy, — found its main though 
not its sole support in the commercial and manufacturing 
centres of the country, that is in the Middle States and New 
England. The latter, representing the theories and traditions 
of the Jeffersonian Republicans, — such as the restrictive 
construction of the Constitution, an extreme view of states' 
rights, and an inclination in the direction of free trade, — 
found its main support among the farming classes, notably in 
the South. Toward the close of Jackson's second administra- 
tion, while Whigs and Democrats were sharply opposing each 
other, Arkansas, which had been organized as a territory in Arkansas 
1819, without any restriction on slavery, was, on June 15, 1836, admitted in 

, . , , , , r 1 -nyr. . 1836, Michigan 

admitted as a slave state, under the terms of the Missouri in 1837. 
Compromise. When a disposition was manifested on the part 
of the North to revolt, even John Quincy Adams insisted that 
the admission of Arkansas as a slave state was "so nominated 
in the bond," and must not be opposed. The Northwest Terri- 
tory was then called upon for another free state, and the 
result was the admission of Michigan on January 26, 1837. 

With the admission in 1845 of Florida and Texas, the terri- Florida and 
torial limits of slavery received their last extensions. By Texas the last 

^ ^ slsvc states 

the treaty of 1763, Spain ceded Florida to Great Britain in admitted, 
return for Cuba, and under the English the province increased ^^45- 
in prosperity and loyalty. When the news of the events of 
July 4, 1776, reached St. Augustine, John Hancock and 
Samuel Adams were burned in effigy by a cheering crowd of 
loyalists.^ In 1781 Galvez captured Pensacola,^ and in 1783, 

^ FuUer, The Purchase of Florida, 257; Campbell, Colonial Florida, 
16-17. 135. 140; and Washington's Works, 

' See Hamilton, Colonial Mobile, 176. 



284 



THE AMERICAN CONSTITUTION 



[Ch. 



Possession 
taken of West 
Florida, 1810. 



East Florida 
and treaty of 
1819. 



Florida 
admitted 
in 1845. 



Texas ceded 
by France to 
Spain, 1763. 



Florida was ceded back to Spain by a treaty declaring that 
"his Britannic Majesty ceded and guaranteed to his Catholic 
Majesty Eastern and Western Florida." * That treaty left 
behind it a complicated controversy as to boundary with 
Louisiana, which resulted in an order from the President to 
Governor Claiborne of the Territory of Orleans to take pos- 
session of West Florida, which he did, in 1810, with the excep- 
tion of Mobile, possession of which was not taken until 1813. 
At the same time the South had its eyes on East Florida, of 
which the President was authorized to take "temporary 
possession" by acts of January 15, and March 3, 181 1, passed 
secretly. The necessity for such a course increased as that 
lawless region was filled up with filibusterers, hostile refugee 
Creeks, and many negroes of whose services free use was 
made during the War of 1812 when English and Spaniards 
made it a base of raids upon our territory. In July, 18 16, a 
"negro fort" was blown up by an American force sent into 
Florida for that purpose. After Jackson had raided East 
Florida in 18 18, during the Seminole War, a treaty of cession 
from Spain to the United States was signed in February, 1819, 
which was ratified in 182 1. In 1822 an Act of Congress was 
passed as in the case of Missouri, which, while not referring in 
express terms to the Ordinance of 1787, in effect endowed the 
inhabitants of that territory with the rights granted by that 
Ordinance. After the end of the Seminole War in 1842, and 
the removal of the remnants of the Indians across the 
Mississippi, Florida was admitted as a slave state in March, 
1845. As in the cases of Louisiana and Missouri, the custom 
of slavery, tacitly recognized by congressional legislation, had 
been in existence there long prior to annexation. 

Despite the persistent claims of Spain, France took posses- 
sion of Texas in 1685, nor did she ever relinquish it until 1763, 
when the whole of Louisiana west of the Mississippi was ceded 
to Spain. Ever since the purchase of Florida from Spain in 
1 819, the southwestern boundary of the United States had 
been recognized as the Sabine River, west of which extended 

1 "This title extinguished all proclamation of 1763, Spain main- 
French claims, for by the treaty of tained, after 1783, the divisions of 
1763 France had ceded all east of East and West Florida." Fuller, 
the Mississippi to England. Fol- The Purchase of Florida, 141. 
lowing the language of the English 



IX.] AFRICAN SLAVERY AND ITS CONSEQUENCES 285 

the then foreign land of Texas. After the successful revolt 
of Mexico, by the treaty of Cordova, February 24, 182 1, 
"Texas and Coahuila" became one of the states of the Mex- "Texas and 
lean Republic. While slavery was not recognized in the con- ^o^^^l^" °^^ 
stitution of that state, nor in the provisional Texas constitu- 
tions of 1833 and 1835, American settlers had brought their 
slaves with them and fairly introduced the custom of slavery, 
which was formally recognized in the constitution of 1836, 
declaring all persons of color slaves for life, if they had been 
in that condition before their emigration to Texas, and were 
then held in bondage. On March 2, Texas asserted the right 
of secession by declaring its independence of Mexico; and in 
1837 its independence, though never acknowledged as such 
by Mexico, was recognized by the United States, England, 
France, and Belgium. When the question of the annexation 
of Texas was hotly discussed in the presidential campaign of 

1844, Van Buren, who opposed it, was set aside by the Demo- 
cratic party for James K. Polk, who favored it. In January, 

1845, after the election of Polk, Congress consented that Texas 

might be erected into a new state, subject to three conditions, Texas a new 
the last of which was that "new states of convenient size, state subject 
not exceeding four in number, in addition to the State of ditions. 
Texas, and having sufficient population, may hereafter, by the 
consent of said state, be formed out of the territory thereof, 
which shall be entitled to admission under the provisions of 
the Federal Constitution; and such states as may be formed 
out of that portion of the territory lying south of thirty-six 
degrees thirty minutes north latitude, commonly known as 
the Missouri Compromise line, shall be admitted into the 
Union with or without slavery, as the people of each state ask- 
ing admission may desire. And in such state or states as shall 
be formed out of said territory north of said Missouri Com- 
promise line, slavery or involuntary servitude (except for 
crime) shall be prohibited." The power to annex by treaty 
was exercised in 1803, despite the doubts as to the legality of 
that method of proceeding. Now annexation even without a Annexation 
treaty was carried out as in 1803 by the votes of the party of without 
strict construction. In December the annexation of Texas was 
completed without the formality of a treaty. With the election 
of Polk the North and South were finally arrayed in opposition 



286 



THE AMERICAN CONSTITUTION 



[Ch. 



Population of 
the Southwest 
prior to 1830. 



Iowa admitted 
in 1846; 



Wisconsin 
in 1848. 

Mexican War 
a victory for 
slavery. 



Its soU had 
been made 
free. 



to each other, — the slavery question became the "burning 
question from that time down to the appeal to arms." 

Prior to 1830, the Southwest had filled up more rapidly than 
the Northwest; at that date the centre of population was 
farther south than it has ever been at any other time. Com- 
paratively little of the soil of Michigan, Iowa, Minnesota, and 
Wisconsin had as yet been occupied, although settlements were 
being made on most of the larger streams. The Territory of 
Iowa had in 1836 only 10,500 inhabitants, ini840, only 43,000, 
at which time Wisconsin had only 31,000. At that date nearly 
all of the lands of the United States east of the Mississippi 
had been taken up by settlers. So far the mass of immigration 
was as yet native, as the great rush from Europe did not 
begin until about 1847.^ Out of such conditions arose the 
next two states admitted as free states. In 1834, all that part 
of the United States lying west of the Mississippi River and 
north of Missouri, including the present area of Iowa, was 
placed under the jurisdiction of the Territory of Michigan, and 
two years later the Territory of Wisconsin, including what is 
now Iowa, was created. In 1838, Iowa itself, originally a part 
of the Louisiana Purchase, was made a territory, and on De- 
cember 28, 1846, it was admitted to the Union as a state. By 
the Ordinance of 1787, Wisconsin had been a part of the North- 
west Territory; in 1800 it was included in Indiana Territory, 
whence in 1809 it passed to Illinois Territory, and finally to 
Michigan Territory. Not until 1836 was Wisconsin Territory 
created. After the constitution framed in 1846 had been 
rejected by the people, a second was ratified in 1848, and Wis- 
consin became a state on May 29 of that year. 

The sequel of the annexation of Texas was the Mexican War, 
resulting in a vast acquisition of territory, which came as an 
additional victory for slavery, because, as nearly all of it lay 
south of 36° 30', it could become, under the terms of the Mis- 
souri Compromise, slave soil. A drawback existed, however, 
in the fact that in the new territory thus acquired, slavery had 
been forbidden by Mexican law. Mexican soil was declared 
to be free under the decree of Guerrero, the Mexican Dictator, 
in 1829, afterwards ratified by the Mexican Congress. That 
fact predisposed many who were not in general opposed to 
* Cf . Andrews, Hist, of the United States, i, 370-372. 



IX.] AFRICAN SLAVERY AND ITS CONSEQUENCES 287 

slavery against extending the institution thither. As an ex- 
pression of that feeling, David Wilmot, a Pennsylvania Demo- 
crat, following in the footsteps of Tallmadge, introduced in the 
House in 1846 his famous Proviso, applying to any newly Wilmot Pro- 
acquired territory the provision of the Ordinance of 1787, "that ^^^°' ^^'*^" 
neither slavery nor involuntary servitude shall ever exist in 
any part of said territory, except for crime, whereof the party 
shall be first duly convicted." While the Wilmot Proviso 
failed to pass, it called into existence the Free-Soil party, Free-SoU 
founded by the union of anti-slavery Democrats and Whigs P^*y-- 
with the Abolitionists. Through the power of the Free-Soilers 
to draw the Democratic vote from New York, the Presidency 
passed to Taylor, who, despite the fact that he was a Louisiana 
slaveholder, was unflinching in his devotion to the Union. 
Eager as Taylor was to bring California in before the question 
of slavery in that territory could be discussed in Congress, 
he urged the people to call a convention and organize a state. 
That they did in 1849; and as the bulk of them were from the 
North, they framed a constitution prohibiting slavery, and 
applied for admission. In the crisis this brought about all eyes California and 
turned to the great Compromiser who had taken the country ^gg^of^sl*^ 
safely through the Missouri crisis of thirty years before. 
Clay now proposed that California should be admitted as a 
free state; that any new states properly formed from Texas 
should also be admitted ; that the territories of Utah and New 
Mexico should be organized without the Wilmot Proviso; 
that a more rigid Fugitive-Slave Law should be enacted ; and 
that the slave trade should be abolished in the District of 
Columbia. Finally, on September 7, 1850, a bill passed Con- 
gress adpiitting California into the Union as a state, without 
slavery, but leaving Utah and New Mexico open to its intro- 
duction. 

The Democratic Convention that met in Baltimore in Triumph of 
1852 pledged that party to the observance of the Compromise P^f ce and 
of 1850; the Whig Convention that met in the same place in whigs. 
June indorsed the Compromise and the Fugitive-Slave Law; 
the Free-Soil Democratic Convention that met at Pittsburg 
in August declared slavery to be a sin against God and a crime 
against man, and denounced the Compromise of 1850 and the 
two parties that supported it. After the triumph of Pierce and 



288 



THE AMERICAN CONSTITUTION 



[Ch. 



South at a 
loss for slave 
territory. 



Failure to 
buy Cuba. 



Kansas- 
Nebraska 
Bill, i8S4. 



Douglas 
and squatter 
sovereignty. 



the ruin of the Whigs, the South was at a loss what to do for 
new slave territory, now that the North had a preponderance 
through the admission of California and the rapid growth of 
the Northwestern States, in which New England ideas had 
become predominant. As slavery had reached the limits of 
its state extension in 1845 with the admission of Florida and 
Texas, to the territories alone all future attacks had to be 
directed. Passing over the attempt to buy Cuba, which failed 
at Ostend in 1854, we must look next at the scheme to acquire 
more territory into which to extend slavery in the region lying 
west of Missouri and Iowa, to the north of 36° 30', and which, 
under the Missouri Compromise, was ever to be free soil. 
The project that contemplated the repeal of that famous 
compact proved successful, so far as legislation could go, 
when a bill, introduced in the Senate in December, 1853, to 
organize the Territory of Nebraska received the support of a 
sufficient number of Free-Soil Democrats to make it a success. 
A week later, a new bill was brought in, known as the Kansas- 
Nebraska Bill, approved May 30, 1854, which divided the 
region covered by the first into two territories, one directly 
west of Missouri, to be called Kansas, and the other, north 
of this, to be called Nebraska. Thus two states were to be 
opened to slavery instead of one, for the new bill distinctly 
declared that the Missouri Compromise had been swept away 
by the later Compromise of 1850. The passage of the bill in 
question was coupled with the contention that, as the popula- 
tion of the territories had the natural right to decide for them- 
selves the character of their own local institutions, Congress 
had no authority to vote slavery in or out for them. That 
idea, known as Squatter Sovereignty, was the invention of 
Stephen A. Douglas, a Northern Democrat, who proposed thus 
to lay bare the finest region of country open for settlement 
as a battle-ground between the slave-labor and the free-labor 
systems. When the Kansas-Nebraska question passed from 
Congress to Illinois in the fall of 1854, Douglas was called upon 
to defend his claim that the slavery question was forever 
settled by his invention of "popular sovereignty," which, he 
said, took it out of Congress, and gave it to the people of the 
territories to decide as they pleased. The anti-Nebraska party 
in Illinois, when forced to find a champion who could meet 



IX.] AFRICAN SLAVERY 'AND ITS CONSEQUENCES 289 

"the little giant" in debate, agreed upon Abraham Lincoln, Abraham 
who had served a single term in Congress (1847-49). The time ^^^^°^^- 
had now arrived when Douglas was to be told that slavery 
was not a local but a national question, that any particular 
institution in any locality that affects the welfare of all is the 
common concern of all. Lincoln's expressions on that subject 
were the first articulate outcry of the new national spirit, just 
after the nation awoke to a full sense of its oneness. In one 
of his early meetings with Douglas, Lincoln said: "Let us re- 
adopt the Declaration of Independence, and the practices and 
policy which harmonize with it. Let North and South — let 
all Americans — let all lovers of liberty everywhere — join in 
the great and good work. If we do this we shall not only have 
saved the Union, but we shall have so saved it as to make and 
keep it forever worthy of the saving. We shall have so saved it 
that the succeeding millions of free, happy people, the world 
over, will rise up and call us blessed to the latest generations." 
Such was the prelude to the more famous Lincoln-Douglas Lincoln- 
debates of 1858.^ Then it was, after an interval of eight years, debated 
that the admission of another free state followed that of Call- of 1858. 
fornia. On March 20, 1804, Upper Louisiana was organized, 
consisting of Arkansas, Missouri, Iowa, and a large part of 
Minnesota. Not, however, until March 3, 1849, did a bill pass 
organizing the last-named as a territory. In 185 1 the Indians 
gave up their rights by treaty, and in 1857 a constitution was 
adopted. On May 11, 1858, Minnesota was admitted as a Minnesota 
state into the Union. No part of the territory of the United admitted in 
States has a more difficult history than that embraced within 
the limits of Oregon. As the author has attempted, in another 
work, to condense that history into a narrow compass, he will 
content himself. here with a simple reference to that attempt.^ 
The Oregon country was really secured in 1846 by the treaty 
with Great Britain, which fixed the boundary between British 
America and the United States west of the Rocky Mountains 
as at present defined. In 1848 the territorial government was 
established, and on February 14, 1859, Oregon was admitted Oregon ad- 
as a state into the Union. mitted in 1859- 

* See the author's article in The ' Taylor, International Public 

North American Review for Febru- Law, 130, 134, 136, 146. 
ary, 1909, entitled "The Lincoln- 
Douglas Debates." 



290 



THE AMERICAN CONSTITUTION 



[Ch. 



Summary. 



Eleven free 
and nine slave 
states in 1859. 



The Dred Scott 
case, 1857. 



Was the act 
embodied in 
the Missouri 
Compromise 
constitutional ? 



A point has now been reached at which it is possible to sum 
up the results of the seventy years' struggle between the free 
and slave states for the political control of such sovereign 
powers as were vested in the national legislature by the Con- 
stitution adopted in 1789. Prior to the admission of Missouri 
in 1 82 1, the process of preserving the balance of power by the 
alternative admission of a free and slave state had proceeded 
without interruption. The result up to that point was five 
free and five slave states. With the admission of Oregon in 
1859, the political balance-sheet indicated a decided advantage 
in favor of one of the competitors. In the column of free 
states, admitted since 1789, there stood Vermont (1791), Ohio 
(1803), Indiana (1816), Illinois (1818), Maine (1820), Michi- 
gan (1837), Iowa (1846), Wisconsin (1848), California (1850), 
Minnesota (1858), Oregon (1859), — eleven. In the column of 
slave states, admitted during the same period, there stood 
Kentucky (1792), Tennessee (1796), Louisiana (1812), Missis- 
sippi (18 1 7), Alabama (i 819), Missouri (i 821), Arkansas (1836), 
Florida (1845), Texas (1845), — nine. Thus it appears that the 
South was vanquished in the seventy years' battle for political 
control through the organization of new states on slave soil. 

Just before the end came, the conflict was shifted from the 
political to the judicial arena. When in 1846-50 an attempt 
was made to extend the Missouri Compromise, an act of con- 
gressional legislation, to all the territory acquired from Mexico, 
it was defeated by the Compromise of 1850, under which Con- 
gress and the territorial legislatures were bound to refrain from 
dealing with the subject of slavery in the new territories at all. 
When in 1854 the Missouri Compromise was abrogated, leav- 
ing to the people of each territory the right to decide the ques- 
tion of slavery as they pleased, began the Kansas-Nebraska 
struggle whose result, as stated above, demonstrated that slave- 
state immigration could not compete with free-state immigra- 
tion under the rules which the Douglas "popular sovereignty" 
scheme defined. It only remained for the judicial power to 
determine whether or no Congress had constitutional authority 
to exclude slavery from the territories ; was the act of congres- 
sional legislation embodied in the Missouri Compromise con- 
stitutional? In the case of Dred Scott v. Sandford,^ decided 

1 19 How. 393. 



IX.] AFRICAN SLAVERY AND ITS CONSEQUENCES 29I 

March 6, 1857, the Supreme Court held that it was not. The 
vital facts of the case, which began in the Federal Circuit 
Court for Missouri in 1854, are these: In 1 834, Dr. Emerson 
took his negro slave, Dred Scott, from Missouri first to Illinois, 
where slavery was prohibited by statute, then to Wisconsin, 
a part of the Louisiana Purchase, where slavery was prohib- 
ited by the Missouri Compromise. In 1838, Dr. Emerson 
returned with his slave to Missouri. Then it was that Scott, 
or some one for him, conceived the idea that by touching the 
free soils of Illinois and Wisconsin during his absence he had 
been set free. In other words, the direct purpose of the case 
was to ascertain whether or no the doctrine laid down by Lord -'^ attempt 
Mansfield in Sommersett's case — wherein it was held that docltrkieof^ 
a slave, taken to England from one of the American colonies Sommersett's 
where slavery was legal, was set free by touching the soil of ^^^' 
England, where slavery was not recognized by positive law — 
could be applied under our Constitution, whose compromises 
expressly recognized the existence of slavery as a matter of 
positive and supreme law. An eminent English jurist has thus 
stated in a few words the essence of the Dred Scott case: 
"There, a person, having the status of slave in a state where 
slavery was legal, was taken by his master into a free state of 
the Union in which slavery was prohibited by law; nothing, 
however, was there effectually done to alter the condition of 
the slave, and it was held that on returning to a slave state 
he again became a slave. " ^ On the theory that he was a free 
man after his return to Missouri, Dred Scott contended that 
a whipping there given him by his master in 1848 was an 
assault and battery, for which he brought suit in a state court 
at St. Louis and obtained judgment. While that case was 
pending in the State Supreme Court, Dr. Emerson sold his 
slave to Sandford of the city of New York. Upon the theory 
that Scott and Sandford thus became "citizens of different 
states," the former brought suit against the latter for assault 
and battery in the Federal Circuit Court for Missouri, where 
Sandford pleaded that the plaintiff was not as alleged a citi- Plea to the 
zen of Missouri but "a negro of African descent; his ancestors J^^^diction 

° — was Scott 

were of pure African blood, and were brought into this country a citizen? 
and sold as negro slaves." Scott in demurring to that plea 
^ Broom's Constitutional Law (Denraan, 2d ed.), 103. 



292 



THE AMERICAN CONSTITUTION 



[Ch. 



Constitu- 
tionality of 
Compromise 
essence of 
issue. 



Fugitive- 
slave clause. 



« Consistency 
of Garrison. 



claimed that he was a citizen on defendant's own showing, and 
his demurrer was sustained. Sandford then pleaded to the 
merits that plaintiff was his negro slave and that as such he 
had "gently laid hands on him "as he was authorized to do 
by law. 

After the court had declared the law to be with the de- 
fendant, plaintiff presented exceptions upon which the case 
passed to the Supreme Court, where the primary question 
was one of jurisdiction. Was Scott a "citizen of Missouri" 
within the meaning of the Constitution? If he was not, the 
Federal Circuit Court had no jurisdiction of his case; and he 
certainly was not a citizen but a slave, unless his residence 
in Illinois, where slavery was prohibited by statute, and in 
Wisconsin, where slavery was prohibited by the Missouri Com- 
promise, had set him free. The constitutionality of the Com- 
promise was thus the essence of the issue, because upon its 
validity depended the fact whether Scott's status as a slave was 
affected by his presence on the soil of Wisconsin. If Mans- 
field had been governed by an Act of Parliament directing him 
to return Sommersett to his master as a fugitive slave, so that 
his status as such, established by the law of Virginia, where he 
had been purchased, might be preserved at London, he would 
have said at once slavery is here upheld by positive law. So 
the Supreme Court was compelled to hold, because by the 
positive and supreme law embodied in the "compromises of 
the Constitution" the status of a slave fixed by the law of one 
state followed him to such an extent into every other state that 
his return as such was guaranteed by positive law. Article iii, 
Sec. 2, Clause 3, expressly declared that "no person held to 
service or labor in one state, under the laws thereof, escaping 
into another state, shall, in consequence of any law or regu- 
lation therein, be discharged from such service or labor, but 
shall be delivered up on claim of the party to whom service or 
labor may be due." In a word Scott could not win unless the 
doctrine of Sommersett's case could be applied to his, and such 
an application was expressly forbidden by the clause in ques- 
tion. The fault was in the provisions of positive constitutional 
law which the Court could not alter. Therefore William Lloyd 
Garrison, with perfect consistency, directed his attacks against 
the Constitution itself, or against those parts of it in which the 



IX.1 AFRICAN SLAVERY AND ITS CONSEQUENCES 293 

compromises were embodied.^ The North revolted against the 
judgment of the Court, and refused to acquiesce in it, not be- 
cause it was not a correct announcement of the positive law, 
but because the great moral revolt that had its roots in 
Sommersett's case had repudiated the positive law and made 
it odious. No serene and impartial student of the Constitution 
should ever for a moment doubt that the conclusions reached 
by the Supreme Court in the Dred Scott case were in perfect 
accord with the positive law as defined in the compromises of 
the Constitution. On the other hand, no such student of the 
history of humanity will ever for a moment doubt that such 
conclusions were in sharp conflict with what Seward called 
" the higher law " — that is, the law on the subject of slavery as 
it had been fixed at that time by the consensus of the civilized 
nations. When at an earlier day the Supreme Court aroused 
the country by holding, in Chisholm v. Georgia, that a state 
was suable by a private citizen, the matter was remedied by 
the Eleventh Amendment. So in due time the conclusion 
reached in the case of Dred Scott was reversed by the Thir- Thirteenth 
teenth Amendment, which provides that: "Neither slavery ^° ^°*' 
nor involuntary servitude, except as a punishment for crime 
whereof the party shall have been duly convicted, shall exist 
within the United States, or any place subject to their juris- 
diction." The moment it was ascertained in Dred Scott's case 
that his status as a slave had never been changed by the laws 
of the free states into which he was taken, the contention that 
he was a citizen, in any sense, became hopelessly untenable.^ 

By that time the disruptive force of the slavery question Disruptive 
had rent in twain everything that could be dismembered. Ex- ^ll^° 
cepting the Catholics and Episcopalians, it had split the great question. 

^ Because the Constitution put critics of the judgment in question 

the institution of slavery under the frankly admits that "the action had 

protection of the supreme law of been broueht by Scott in the Cir- 

the land, Garrison denounced it as cuit Court of the United States for 

a league with the Devil and a cove- the District of Missouri, to establish 

nant with Hell. the freedom of himself, his wife, and 

2 The fact that it required a con- their two children." Carson, History 

stitutional amendment to abolish of the Supreme Court, 367. Will any 

slavery puts it beyond all question jurist now contend that the federal 

that the Supreme Court of the courts, under the Constitution as it 

United States had no authority to then stood, had the power to grant 

abolish it, in the absence of such an that prayer ? 
amendment. One of the harshest 



294 



THE AMERICAN CONSTITUTION 



[Ch. 



Lincoln leader 
of Republican 
party. 



His contention 
corner-stone of 
new national 
life. 



Discomfiture 
of Douglas. 



religious denominations into Northern and Southern churches. 
It had spHt into two sections the Whig party, which went to 
pieces after the election of 1852. For two years thereafter 
there was really but one great party, the Democratic party, 
which was called upon in 1854 to pass the Kansas-Nebraska 
Act, made law by the votes of Northern and Southern Demo- 
crats, and Southern Whigs. At the first election for members 
of Congress after the passage of that Act, every one in the 
North hostile to the extension of slavery enlisted in the ranks 
of those opposed to the Kansas-Nebraska Bill, — an organiz- 
ation called at first "Anti-Nebraska Men," and before the new 
Congress met. Republicans. From the time the Kansas- 
Nebraska question passed from Congress to Illinois in the fall 
of 1854, the leader of the new party was Abraham Lincoln, 
whose quaint originality, aptness of phrase, cleanness of defin- 
ition, and poetical fervor often culminated in flights of genuine 
eloquence. Of his brilliant antagonist, Douglas, it has been 
said, that "he was tireless, ubiquitous, unseizable. It would 
have been as easy to hold a globule of mercury under the fin- 
ger's tip as to fasten him to a point he desired to evade." But 
against all his arts Lincoln made good the simple contention 
that all local questions that affect all are the common concern 
of all, which contention has become the corner-stone of our 
new national life. The result of the first application made of 
that principle by the reunited nation was the destruction, 
with the hearty concurrence of the South, of a peculiar social 
institution within the Territory of Utah which conflicted with 
the general principles of our civilization.^ In "the battle of 
giants," as the Lincoln-Douglas debates of 1858 are usually 
called, two immortal tribunitian orators spoke really the last 
words in the bitter and prolonged contestation over slavery 
that culminated in the Civil War. The inconsistent attitudes 
Douglas was forced to assume by reason of the decision in the 
Dred Scott case exposed him to attacks from friend and foe. 
After its rendition Lincoln thus taunted him: "The first thing 
I ask attention to is the fact that Judge Douglas constantly 
said, before the decision, that whether they could or not was 
a question for the Supreme Court. But, after the Court has 

^ See Church of Jesus Christ of I ; U. S. v. Church of Jesus Christ, 
Latter-Day Saints v. U. S., 136 U. S. etc., 150 U. S. 145. 



IX.] AFRICAN SLAVERY AND ITS CONSEQUENCES 295 

made the decision, he virtually says it is not a question for the 
Supreme Court, but for the people." Not long after the meet- 
ing of the Democratic National Convention at Charleston in 
April, i860, Judah P. Benjamin, of Louisiana, said in the 
Senate: "Sir, it has been with reluctance and sorrow that I 
have been obliged to pluck down my idol from his place on 
high, and to refuse him any more support or confidence as a 
member of his party. . . . We accuse him for this, to wit: 
that having bargained with us upon a point upon which we 
were at issue, that it should be considered a judicial point; 
that he would abide the decision, that he would act under the 
decision, and consider it a doctrine of the party; that having 
said that to us here in the Senate, he went home, and under 
the stress of a local election his knees gave way, his whole per- 
son trembled. His adversary stood upon principle and was 
beaten; and lo! he is the candidate of a mighty party for the 
Presidency of the United States." Not until a change was 
made in the party majority in the Senate by the withdrawal 
of the Southern Senators was Kansas at last admitted as a 
state, January 29, 1861, under the Wyandotte constitution, Kansas ad- 
by which slavery was prohibited. No slave state had been °""^^ '° ^^^^• 
admitted since 1845. During the intervening sixteen years 
six free states — Iowa, Wisconsin, California, Minnesota, 
Oregon, and Kansas — had marched consecutively into the 
Union. 



CHAPTER X 



SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH (1804-65) 



Savigny — law 
as a part of 
national life. 



When in 1814 Savigny, the founder of the historical school 
of jurisprudence, published his *^Beruf unserer Zeit," he made 
a revelation to the world through his declaration that law is 
part and parcel of national life. " I regard the law of each 
country," he said, "as a member of its body, not as a garment 
merely, which has been made to please the fancy, and can be 
taken off at pleasure and exchanged for another." Instead of 
regarding law as the creation of the will of individuals, he 
maintained it to be the natural outcome of the consciousness 
of the people, Uke their social habits or their language; the 
people, he said, is always the true legislator {"Das Gesetz ist 
das Organ des Volksrechts"). He thus assimilated changes in 
law to changes in language.^ "As in the life of individual men 
no moment of complete stillness is experienced, but a constant 
organic development, such also is the case in the life of nations, 
and in every individual element in which this collective life 
consists. So we find in language a constant formation and de- 
velopment and in the same way in law." ^ Max Miiller has 
said that a living language is like a mountain stream which is 
ever changing and widening as it moves' on in its course ; that 
a dead language is like such a stream when the frost of winter 
checks its onflow and hardens it into ice. The moment a lan- 
guage ceases to change through growth it is dead ; the moment 
a constitution ceases to change through growth it is dead. In 
the light of that truth Sir James Mackintosh said: "Constitu- 



^ "In no conceivable condition of 
niankind could it [law] ever have 
stood alone. It is peculiarly the pro- 
duct of every social force existing 
at any moment in the community; 
it reacts back upon the social forces 
as being in itself the most potent 
force of all." Amos, A Systematic 
View of the Science of Jurisprudence, 
18. 



2 In 18 1 5 appeared the first 
volume of Savigny's Geschichte 
des romischen Rechts im Mittelalter, 
the last volume of which did not 
appear until 1831. System des 
heutigen romischen Rechts (8 vols. 
1840-49); Das OUigationen-recht (2 
vols., 1851-53). 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 297 

tions are not made, they grow." Despite the fact that a part "Constitutions 
of our Constitution, the federal part, is an artificial creation, f^^ °°' ^^^^' 

j.,f ,.. ,. . ,, . they grow." 

despite the fact that it is encased in precise and dogmatic 
written formulas, despite the fact that change through the pre- 
scribed forms of amendment is next to impossible, — the truth 
remains that during something more than an hundred years it 
has passed through a wider expansion than any other in his- 
tory. Its most notable single trait is its elasticity, its growing- 
power. By solemn restatements in written instruments at English 
long intervals of its basic principles, the growth of the English Constitution 
Constitution has been directed, not retarded. When Magna embodied in 
Carta (1215), the Petition of Right (1628), the Acts of the documents. 
Long Parliament (1640-41), the Habeas Corpus Act (1679), 
the Bill of Rights (1689), the Act of Settlement (1700 and 
1701), the Reform Bills, beginning with that of 1832, are 
viewed as a connected and progressive whole, we see how the 
ancient and originally unwritten Constitution of England has 
been developed, from age to age, by the aid of these dogmatic 
restatements of it. As by arboriculture the growth of trees may 
be advanced and directed, so by the processes of Political 
Science the growth of constitutions may be advanced and 
directed. Thus the English Constitution has passed through a long process 
a long process of change and of growth, it has taken on many ®^ change and 
new forms, it has borne great fruit, it has controlled the 
destinies of a nation "which," in the happy phrase of Taine, 
"while reforming in all directions, has destroyed nothing; 
which has preserved both its trees and its constitution, which 
has lopped off the dead branches without leveling the trunk; 
which alone, in our days, among all nations, is in the enjoy- 
ment not only of the present, but the past. " ^ 

We began our constitutional life by embodying in our state constitu- 
original state constitutions the ripe fruits of England's political ^^°^^ outcome 
growth. In that way our first constitutions were the products 
of political evolution. When the time came for confederation 
we adapted to our wants a foreign and entirely artificial 
federal fabric which was outgrown in about twelve years. 
Through a great invention then made, we entered into an 
entirely new and unique union, partly federal and partly 
national, whose defects had to be remedied by twelve amend- 
* Hist, of Eng. Literature, ii, 517. 



298 



THE AMERICAN CONSTITUTION 



[Ch. 



How we have 
advanced from 
one stage of 
growth to an- 
other. 



Omnipotent 
Parliament 
and Supreme 
Court. 



ments adopted within the period of fifteen years. Still a 
radical defect remained. The new system, operating directly 
upon the citizen, had no citizens in its own right. As we grew 
into a nation it became necessary to remove that defect 
through the creation of a genuine national citizenship, a result 
obtained by the adoption in 1868 of Section i of the Fourteenth 
Amendment. Through the silent revolution thus wrought the 
centre of gravity of the composite structure was shifted from 
the states to the nation. And so by the adoption, from time 
to time, of new principles defined in written instruments, we 
are advancing, as England has advanced, from one stage of 
growth to another. Nothing could be more superficial than 
the attempt to differentiate the English and American consti- 
tutions by the entirely false and misleading statement that 
the one is unwritten, the other written. The fact is that the 
series of written documents in which each is now defined are 
equally precise, dogmatic, and voluminous. In the last analysis 
the fundamental difference that divides the two systems is 
embodied in the fact that the supreme and ultimate power in 
the one is vested in the omnipotent Parliament, in the other 
in the Supreme Court of the United States. A practical illus- 
tration may be drawn from existing conditions. There is in 
England, at this moment, an urgent need for the abolition or 
reform of the House of Lords. To the omnipotent Parliament 
the entire subject is committed, — the last word must de- 
termine the new form the Constitution is to assume. In the 
United States the transition from individualism to collectiv- 
ism has wrought a revolution in economic conditions whose 
outcome involves the right of the national government to 
abolish or seriously modify trusts and monopolies. Congress 
has exhausted its legislative power, and it now remains for 
the Supreme Court to determine whether or no its efforts have 
been efficacious. By judicial construction the Sherman Anti- 
Trust Law may be paralyzed, as it was in United States v. 
the Knight Co. ; or it may be given full effect, as it was in the 
Northern Securities Company case ; or it may be given a lim- 
ited effect by a compromise judgment pausing midway be- 
tween the two. As it is entirely impracticable as a general 
rule to amend the Federal Constitution in a formal way to meet 
the changed conditions incident to growth, it only remains for 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 299 

Congress to make a tentative effort when serious changes Congress 
become necessary, subject to the final revising power of the ^^^i^^* to its 

. . . fi^al revising 

Supreme Court of the United States. Such an effort upon power. 
the part of Congress may be annulled entirely as unconstitu- 
tional, or its act may be given by the Court an operation and 
effect never intended by the legislature. In all advancing 
societies the problem of problems is that involved in the expan- 
sion and readjustment of constitutions and codes to changed 
conditions arising out of growth. As the British Empire has 
expanded, that function has been performed chiefly by the 
omnipotent Parliament ; as the American Commonwealth has 
expanded, that function has, for two reasons, been performed 
chiefly by the Supreme Court of the United States. Those 
reasons are : first, the difficulty of formal constitutional amend- 
ment; second, the power of the Supreme Court to annul 
national laws, or to remould them by construction. 

According to the first census the population of the original Struggle be- 
thirteen states and two territories was 3,673,570, possessed of ^^^^prp^p^cial 
843,246 square miles. ^ According to the twelfth census the spirit. 
population of forty-six states and two territories is 91,972,266, 
possessed of 2,974,159 square miles. Throughout that pro- 
cess of growth and expansion there has been an eternal war- 
fare between two antagonistic principles, each struggling for 
the mastery. The one was the old provincial spirit embod- 
ied in the first Constitution, the other was the new national 
spirit embodied in the existing Constitution. The potent ally 
of the former was slavery ; the potent ally of the latter was the 
ever increasing force of intercommunication. At the end of 
the Revolutionary War the people who dwelt in the straggling 
series of republics long drawn out along the Atlantic seaboard 
had so dim a sense of union, and were so deeply imbued with Dim sense of 
the love of local self-government, that Josiah Tucker, Dean ^3° ^* ^^^ 
of Gloucester, in ridiculing the idea that they could ever be 
united "under one head, whether republican or monarchical," 
said: "They can never be united into one compact empire 
under any species of government whatever; a disunited people 
till the end of time, suspicious and distrustful of each other, 
they will be divided and subdivided into little commonwealths 
or principalities, according to national boundaries, by great 
* See A Century of Population Growth in the U. S., 1 790-1 900, 47, 51, 54. 



300 



THE AMERICAN CONSTITUTION 



[Ch. 



Presence of 
slavery. 



Influence 
of intercom- 
munication. 



bays of the sea, and by vast rivers, lakes, and ridges of mount- 
ains. '■ 

Pronounced as such conditions were, they were gravely 
intensified by the presence of slavery, which did so much in 
its day to render impossible a real chemical union between 
a slaveholding section, with distinct feelings, interests, and pe- 
culiarities, and a section never willing to do more than to toler- 
ate its existence in the other. The natural outcome of that 
antagonism was the seventy years' struggle for the extension 
of slavery into the new states which has been outlined already. 
Against such mighty forces, all making for disunion, the new 
national spirit embodied in the second Constitution would 
have been helpless, despite the strength of its nationalizing 
machinery operating directly on the individual, had it not been 
for the unifying force of rapid intercommunication. Without 
the steamboat, the locomotive engine, and the telegraph, exist- 
ing conditions would have been impossible. Except such large 
freight as went by sea around Cape Cod, two large coaches 
were enough in 1783 for all the travelers, and nearly all the 
freight besides, that passed between Boston and New York. 
A revolution was wrought in the travel and commerce of this 
country through a transition from the primitive and ineffect- 
ual means of transportation by pack-horse, stage, and wagon 
to the new methods resulting from the application of steam to 
locomotion on land as well as water. The growth of the new 
national system embodied in the existing Constitution was 
made possible only through the new methods of intercommun- 
ication. It is doubtful whether without their aid the Union 
could have been preserved ; it is certain that without their aid 
the existing conception of national unity could never have 
been brought about. No thinking mind can reject Savigny's 
contention that law, constitutional law, is part and parcel of 
the national life ; it is the outcome of the consciousness of the 
people like their social habits or their language. 

Through the operation of the nationalizing forces to which 
reference has been made, the old provincial conception of local 



* "That in the creation of the 
United States the world had reached 
one of the turning-points in its his- 
tory, seems at the time to have en- 



tered into the thought of not a 
single European statesman." Green, 
History of the English People, iv, 
272. 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 301 

self-government, intensified in one section, as it was, by the 
existence of slavery, has been forced to yield to the new na- New con- 
tional conception by which the original view of the rights of Q^^[o°ality 
the states as sovereign communities has been modified without 
being vitally impaired. In that process of nationalization an in- 
dependent individualism, which feared and resented at the out- 
set nearly every form of state control, has been taught to appeal 
to governments, state and federal, for constant interference 
in the daily life of the citizen. The result has been a narrowing Narrowing 
circle of individual rights. As a very distinguished jurist has 'Yd^^iri'hts" 
recently expressed it: "It is no longer the preservation of a 
strong and independent individualism that is the object of 
solicitude. It is the creation of a state of dependence of the 
individual for his safety on the state. . . . Down to and be- 
yond the era of the American and French Revolution, he [the 
citizen] had everywhere distrusted the state. He feared and 
sought to reduce its power. He did reduce it, wherever the 
community was strong enough to make an effectual resistance. 
He had succeeded in his efforts, by the middle of the nineteenth 
century, in the greater part of the civilized world. He tied the 
hands of government by written constitutions, when he could, 
and was careful to declare in these constitutions what he 
deemed to be his own fundamental inviolable rights."^ As we 
have passed from a state of provincial isolation into a state of 
real national unity, so we have passed from an age of individ- 
ualism to an age of collectivism. "It is the age of collectivism. The age of 
The functions of the state multiply. Its circle of activities ^° ectmsm. 
expands, and the circle of activities around each private indi- 
vidual is correspondingly reduced."^ Nothing could be more 
distinct than the paths along which the American people have 
passed in their progress from provincial isolation to national 
unity; from an independent individualism to a collectivism 
corresponding to that now existing in most of the highly civil- 
ized nations. 

The transformations that have thus taken place in the 
national life of the American people have expressed them- 

1 Chief Justice Simeon E. Bald- of West Virginia, December 29, 

win, "The Narrowing Circle of 1908, pp. 2, 3. 
Individual Rights," an address de- * Ibid. 9. 

livered before the Bar Association 



302 



THE AMERICAN CONSTITUTION 



[Ch. 



Sixty-one 
years without 
a constitu- 
tional amend- 
ment. 



Opposition to 
new national 
system. 



A Southern 
confederacy 
to be based 
on slavery. 



selves in no uncertain terms in their constitutions and laws, 
which are but one though a vitally important aspect of it. As 
all the world knows, the process of constitutional growth has 
been aided but little by amendments made through the cum- 
brous machinery provided by the Constitution itself. During 
the most important period of growth no successful attempt was 
made to amend the Constitution at all. Reference is made to 
the sixty-one years that intervened between the ratification of 
the Twelfth Amendment, September 25, 1804, and that of the 
Thirteenth, December 18, 1865. The primary purpose of this 
chapter will be to outline the death-grapple during that epoch 
between the old provincial forces, aided by slavery, and the 
new national forces, aided by the growing power of intercom- 
munication down to the triumph of the latter through the 
results of the Civil War. 

An effort has been made already to demonstrate that only 
the impending anarchy that threatened the country in 1786-87, 
with an entire dissolution of the pretense of federal govern- 
ment then existing, enabled the nationalists to force the states 
to assemble at Philadelphia for the final experiment. So bitter 
was the opposition in certain quarters that delegates from 
Rhode Island never appeared at all, while those from the great 
State of New York were withdrawn at the critical moment 
through the influence of Clinton, who openly declared that no 
good was to be expected from the efforts of the advocates of 
despotism^ who were proposing to make a new constitution. 
Such was the spirit of the opposition to the new national 
system that contested its adoption in all the states under the 
leadership of such men as Patrick Henry, Richard Henry Lee, 
and Thomas Nelson, whose efforts might have been successful 
had it not been for the patriotism of Maryland and South 
Carolina in refusing to consider the designs of the first-named 
for an independent Southern confederacy to be based on 
«lavery. And yet, after the triumph of the nationals or federals 
under the lead of Washington, assisted by his great lieutenants, 
Madison and Hamilton, it is a comfort to know that even 
Patrick Henry and Mason acquiesced in the result without 



^ He claimed that after a longer of the Union, 
trial the Confederation would be July, 1787. 
found to answer all the purposes 



Penn. Packet, 26th 



X.1 SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 303 

malignity. They had been beaten down by the master. As 
Monroe wrote to Jefferson: "Be assured, Washington's influ- Washington's 
ence carried this government." ^ He beheved with James Wil- ^"^"^p^- 
son, who said in the Federal Convention of 1787: "By adopt- 
ing this constitution we shall become a nation; we are not 
now one. We shall form a national character; we are now 
too dependent on others." ^ 

When the new government was set in motion under the pre- 
sidency of Washington, with Hamilton, the typical Federalist, 
as the organizing statesman, assisted by the genius of Madison 
in the House of Representatives, this country was inferior in 
population and wealth to Holland; it stood but little above 
the level of Denmark or Portugal. Its first real assertion of 
national power was through Hamilton's excise tax on distilled Hamilton's 
spirits, which was made necessary by the assumption of the ®^"^^ *"' 
state debts. That tax pressed with special severity upon the 
settlers in the western counties of Pennsylvania and Virginia, 
who had discovered that it was more profitable to distill their 
corn and wheat into whiskey than to carry it to market by 
almost impassable roads. Lying within a disputed district be- 
tween the two states, these settlers had escaped from vexatious 
interference from either. When they were prompted by their 
isolation to set up for themselves, the Supreme Executive 
Council of Pennsylvania had sent in 1783 a special agent to 
remonstrate with "those deluded citizens in ye western coun- 
ties who seemed disposed to separate from ye commonwealth 
and erect a new and independent state." It is not, therefore, 
strange that when this direct tax was levied directly upon the 
distillation of whiskey, these independent and isolated mount- 
aineers, who considered that their industry had been invid- 
iously selected for persecution, should have threatened to take 
up arms when the revenue officers came to collect it. At the 
critical moment in 1794, Washington instantly sent an army of Whiskey 
sixteen thousand men into the rebellious region, by which the ^lY-^g^. ^^^ 
threatened revolt was suppressed. Thus the first demonstra- 
tion was made that the new government possessed not only 
the power to levy direct federal taxes but the nerve to trample 
upon all provincial opposition to their collection. 

About this time it was that Washington settled the fact that 

* July 12, 1788, MS. ' Madison Papers, ii, 921. 



304 



THE AMERICAN CONSTITUTION 



[Ch. 



Neutrality 
proclamation 
of 1793- 



John Adams' 
and French 
Directory, 



Alien and 
Sedition Laws, 
1798. 



he was to be no less firm in dealing with foreign nations. When 
in April, 1793, news was received that the French Republic had 
declared war against Great Britain and Holland, a condition 
that made it easy for us to drift into war as the ally of France, 
Washington, despite the opposing current of popular feeling, 
on April 22, by the unanimous advice of his cabinet, issued a 
proclamation of neutrality between the French Republic and 
her enemies. As that act involved the assumption that the 
former treaty of alliance was really at an end, including its 
guaranty, by reason of the change of government in France, 
there was an outburst of rage against the President, who was 
accused by the Republicans as being not only an enemy of 
France but of republican institutions. So firmly did he stand 
his ground that Citizen Genet — who attempted to violate the 
neutrality of the United States by granting commissions to 
American citizens to fit out privateers manned by Americans 
to cruise against English commerce — was recalled. As a re- 
cognition of the justice of the President's course the Provisory 
Council of the French Republic demanded "the arrest of Mr. 
Genet and all the other agents who may have participated in 
his faults and sentiments." ^ 

While a patriotic courtesy prompted Washington to dis- 
claim party affiliations, he was the king of the Federalists, 
and as such he passed on the new national power to John 
Adams, who began in 1797 to battle with the French Directory, 
incensed against this country by reason of its strict neutral- 
ity and also by reason of the treaty of peace recently entered 
into between England and the United States. The burst of 
indignation that followed the publication of the "X. Y. Z. 
dispatches" seemed for the moment to overwhelm the Re- 
publicans and to bolster up the Federalists, who had been losing 
ground. In that moment of overconfidence they made the 
fatal mistake, in the hope of strengthening the government 
still further, of passing during the summer of 1798 the two acts 
of Congress, known as the Alien and Sedition Laws, which were 
distinctly partisan. Intense hostility to France by reason of 
her aggressions upon American commerce eliminated party 
divisions for a time and gave over both Houses to Federalist 
control. As the leading Republican journalists were in the 

* For a full statement see Taylor, International Pub. Law, 351-2, 640 sq. 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 305 

main refugee foreigners who had excited their opponents by 
scurrilous and violent attacks, the Federalists, after providing 
for an increase of the army and navy, undertook to muzzle 
these aliens by three alien laws. The essence of the first, an 
amendment of the naturalization laws, was a substitution of 
fourteen years' previous residence for five ; alien enemies could 
not become citizens at all ; in a register to be kept of all aliens 
resident in this country their names were to be entered under 
penalties in case of neglect. The essence of the second, passed 
June 25, and, limited by its terms to two years, was an author- 
ity to the Executive to expel from the country all such aliens 
as might be deemed dangerous to its peace and safety, or such 
as might be suspected of treasonable designs against it. The 
essence of the third was an authority to the Executive, in the 
event of war or invasion, to apprehend, secure, or remove all 
resident aliens, natives, or citizens of the hostile nation, upon 
a proclamation to that effect to be issued at his discretion. 
Turning then from aliens to native-born citizens, a sedition law 
was devised to define more exactly the law of treason, and to 
define and punish the crime of sedition. The practical purpose 
of this law, which was to expire March 3, 1801, was to fine and 
imprison such as should combine or conspire to oppose any 
measure of the Government, and such as should utter any 
scandalous, false, or malicious writing against the President, 
Congress, or Government of the United States. In a word, its 
primary purpose was to advance the interests of the party in 
power by restraining the freedom of speech and of the press. Attempt 
while enlarging at the same time the scope of the federal judi- f^g^o^^l^j 
ciary .through an implied recognition of its common-law crim- discussion. 
inal jurisdiction. Under the Sedition Law there were at least 
six prosecutions; under the Alien Law there were none at all. 
But it was not so much the oppressive execution of these laws 
as the principles embodied in them that aroused to action the 
Republicans, who claimed they were a political weapon directed 
against them. This tyrannical, and, in part, unconstitutional 
legislation thus enacted by the Federalists — "who, allowing 
little for the good sense and spirit of Americans, or our geo- 
graphical disconnection with France, were crazed with the 
fear that this Union might be, like Venice, made over to some 
European potentate, or chained in the same galley with Switz- 



3o6 



THE AMERICAN CONSTITUTION 



[Ch. 



Kentucky and 
Virginia Reso- 
lutions, 1798. 



Additional 
Kentucky 
Resolution 
of 1799. 



erland or Holland, to do the Directory's bidding"^ — drew 
from the Republicans the counterblasts embodied in the 
famous Kentucky and Virginia Resolutions of 1798. 

In November of that year the Kentucky Legislature passed 
a series of resolutions formulated by Jefferson, who intrusted 
them to George Nicholas under a pledge that "it should not 
be known from what quarter they came." Not until 1821 did 
the son of the reputed father of the resolutions draw from 
Jefferson an acknowledgment of their paternity. The first of 
these resolutions, nine in number, declared in part "that the 
several states composing the United States of America are 
not united on the principle of unlimited submission to their 
general government; but that, by compact, under the style 
and title of the Constitution of the United States, and of 
amendments thereto, they constituted a general government 
for special purposes, delegated to that government certain 
definite powers, reserving, each state to itself, the residuary 
mass of right to their own self-government; and that when- 
soever the general government assumes undelegated powers, 
its acts are unauthoritative, void, and of no force." The second 
declared the Sedition Law "void and of no effect," because 
Congress possessed no power to punish crimes not mentioned 
in the Constitution, while the third based the same assertion 
on the ground that it abridged the freedom of speech and of 
the press. The fourth, fifth, and sixth attacked the Alien Law 
on constitutional grounds, while the seventh denounced broad 
construction in general as "a fit and necessary subject for 
revisal and correction at a time of greater tranquillity, while 
those specified in the preceding resolutions call for immediate 
redress." The eighth and ninth direct the manner of their 
transmission to federal representatives and to state executives 
with the warning that, if no action be taken against such un- 
constitutional exercise of national power, "no rampart now 
remains against the passions and the power of the majority 
in Congress." 

The additional Kentucky Resolution of 1799, after repeating 

its definition of the Constitution as "a compact," declares 

"that the several states which formed that instrument, being 

sovereign and independent, have the unquestionable right to 

* Schouler, Hist, of the U. S., i, 411; Randall's Jefferson, ii, 444. 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 307 

judge of its infraction ; that a nullification, by those sovereign- 
ties, of all unauthorized acts, done under color of that instru- 
ment, is the rightful remedy; that, although this common- 
wealth, as a party to the federal compact, will bow to the laws 
of the Union, yet it does, at the same time, declare that it will 
not now or ever hereafter cease to oppose, in a constitutional 
manner, every attempt, at what quarter soever offered, to 
violate that compact; and finally, in order that no pretext or 
arguments may be drawn from a supposed acquiescence, on 
the part of this commonwealth, in the constitutionality of 
those laws, and be thereby used as precedents for similar 
future violations of the federal compact, this commonwealth 
does now enter against them its solemn protest." 

In December of the same year the Virginia Legislature passed Virginia 
a similar series of resolutions, eight in number, substantially ff^^^^^J^ 
identical in thought and feeling, ostensibly prepared by Madi- Madison, 
son,^ then a member of that legislature. Passing over the first, 
declaring the purpose of the legislature to defend the consti- 
tutions, federal and state; and the second, professing a firm 
attachment to the Union, — emphasis should be given to 
the third, which declared "that this assembly doth explic- 
itly and peremptorily declare that it views the powers of 
the Federal Government, as resulting from the compact to 
which the states are parties, as limited by the plain sense and 
intention of the instrument constituting that compact, as no 
further valid than they are authorized by the grants enumer- 
ated in that compact; and that in case of a deliberate, palpable, 
and dangerous exercise of other powers, not granted by the 
said compact, the states which are parties thereto, have the 
right, and are in duty bound, to interpose, for arresting the 
progress of the evil, and for maintaining within their respective 
limits the authorities, rights, and liberties appertaining to 
them." The fourth predicts that broad constitutional construc- 
tion will end in converting our republican system into "at best 
a mixed monarchy"; the fifth and sixth denounce the Alien 
and Sedition Laws as unconstitutional; the seventh expresses 

^ Even when they were in the cial request of the latter, Jefferson 

presidential office both Madison wrote the so-called "Monroe Doc- 

and Monroe looked to Jefferson for trine." SeeTay\oT,Ini. Public Law, 

intellectual guidance. By the spe- 141 sq. 



3o8 



THE AMERICAN CONSTITUTION 



[Ch. 



Jefferson the 
real author 
of both sets. 



Rousseau 
and the 
Contrat 
Social. 



the affection of Virginia for the other states ; the other requests 
the transmission of the resolutions to federal ofificials and state 
executives. 

How can any critical student fail to perceive, when these two 
sets of resolutions are placed side by side, that they are the 
product of a single mind overshadowed by a single thought? 
No matter what Jefferson's motives were for acting secretly in 
this grave matter, the fact remains that from behind a mask 
he offered two phases of a single composition, substantially 
the same in form and substance, to two legislatures. In Ken- 
tucky he acted through George Nicholas; in Virginia through 
James Madison, whose conduct in the making and adopt- 
ing of the Constitution clearly indicated that he was then as 
Federalist as Washington, whose lieutenant he was.^ 

No argument is necessary to demonstrate the extent to 
which Jefferson was imbued with the politics of the French 
Revolution, whose basic idea was drawn from the social con- 
tract theory of Jean Jacques Rousseau. A great critic has said 
that "Rousseau was more popular than Locke, and more dog- 
matic than Hobbes. The result was, the Contrat Social became 
one of the most successful and fatal of politica) impostures." ^ 
The same writer says that the historical importance of Rous- 
seau's political system "is that it is in great measure answer- 
able for the Declaration of the Rights of Man. . . . The birth 
of all men free and with equal rights, the collective sovereignty 
of the nation, and the ' volenti generate ' ^ which positive laws 
express, are taken straight from Rousseau." The thin veneer of 
French philosophy superimposed by Jefferson upon the solid 
substructure of English constitutional law that underlies the 
Declaration of Independence did no harm, — it was innocu- 
ous. But when the time came for him to attempt to embody 
in our political system, through the Kentucky and Virginia 
Resolutions, the idea that a constitution is a mere contract or 
"compact," as viewed by the Rousseau school, it was quite 



* See Madison's speeches in the 
Federal Convention, in which he so 
bitterly opposed the equal repre- 
sentation of the states in the Senate ; 
especially Madison Papers, ii, 982, 
where he says: "The true policy of 
the small states, therefore, lies in 



promoting those principles and that 
form of government which will most 
approximate the states to the con- 
dition of counties." 

2 Sir Frederick Pollock, Hist, of 
the Science of Politics, 75. 

» Ibid. 79. 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 309 

another matter. Holland tells us that "since the assertion of 
the 'rights of man' which preceded the French Revolution, the 
written enactment of such fundamental principles has not 
been uncommon, as well on the European continent as in 
America." ^ But the immense difference that divides a written 
constitution in the United States from a written constitution 
in France is embodied in the fact that in the former the supreme 
and final power to determine when its terms have been in- 
fringed is vested in the courts as a function purely judicial. 
The fundamental heresy embodied by Jefferson in both sets of Jefferson's 
resolutions — a heresy that had to be burnt out in the fires ^^ ^ ^^^^' 
of civil war — was that over the violation of a constitution, 
considered as a "compact," there is no common judge. In the 
Kentucky Resolutions he expresses the idea in these explicit 
terms : " But that, as in all other cases of compact among parties 
having no common judge, each party has an equal right to 
judge for itself, as well of infractions as of the mode and 
measure of redress." In the third of the Virginia Resolutions 
the unauthorized exercise of "the powers of the Federal Gov- 
ernment as resulting from the compact to which the states 
are parties" is to be passed upon — not by the Supreme 
Court of the United States — but by "the states which are 
parties thereto." There is no mistiness of language, there is no 
confusion of thought. Jefferson's clean-cut and drastic pro- 
position as embodied in both sets of resolutions was that 
American written constitutions should be considered only as 
"compacts" in the French sense, as to whose infractions the 
courts have no power to judge. 

Great as Jefferson was, patriotic and wise as he was, the one His failure to 
defect in an otherwise exquisite mind was an utter lack of fu^^arpower. 
appreciation of the importance of the judicial power, as a 
supreme arbitrating power. It may, however, be said in his 
defense that in 1798 the Supreme Court of the United States 
was still in eclipse ; in 1801 Jay abandoned it on the ground that 
"it would not obtain the energy, weight, and dignity which 
was essential to its affording due support to the national 
government." 2 When Jefferson came into power, March 4, 
1 80 1, his first move was to direct a systematic and well-organ- 
ized attack upon the federal judiciary. But a kind provid- 

* Jurisprudence, 362. * See Pellew's Life of Jay, 339. 



310 



THE AMERICAN CONSTITUTION 



[Ch. 



Nullification 
and secession. 



A constitution 
not "a com- 
pact." 



Marshall's 
doctrine. 



ence so ordered that, just one month before, John Marshall 
had taken his seat in that high place in which he sat as the chief 
in the midst of six associates for thirty-four years. Before that 
great career ended he had uprooted and cast out, so far as the 
judicial power could uproot and cast out, the fundamental 
concept, drawn by Jefferson from the politics of the French 
Revolution, which asserted that the infractions of American 
constitutions, like those of France, are beyond the jurisdiction 
of the judicial power. 

Out of the Pandora's Box opened by Jefferson in the Ken- 
tucky and Virginia Resolutions came the closely related doc- 
trines of nullification and secession which were extinguished 
once and forever by the Civil War. Mr. Bryce has thus recently 
summed up the whole matter: "The drily legal and practical 
character of the Constitution did not prevent the growth of a 
mass of subtle and, so to speak, scholastic metaphysics regard- 
ing the nature of the government it created. The inextricable 
knots which American lawyers and publicists went on tying, 
down till 1861, were cut by the sword of the North in the Civil 
War, and need concern us no longer. It is now admitted that 
the Union is not a mere compact between commonwealths, 
dissoluble at pleasure, but an instrument of perpetual efficacy, 
emanating from the whole people, and alterable by them 
only in the manner which its own terms prescribe. It is 'an 
indestructible union of indestructible states.'"^ 

The whole system of "scholastic metaphysics regarding the 
nature of the government," the tying of the "inextricable 
knots which American lawyers went on tying, down till 1861," 
all date from the promulgation by Jefferson in 1798 of the 
purely fanciful theory that an American constitution is a 
"compact" in the French sense, and as such beyond the juris- 
diction of the supreme judicial power, — and not "an instru- 
ment of perpetual efficacy" construable by that power. Upon 
that indefensible word "compact" were based all of the subtle 
and untenable theories embodied in the "scholastic meta- 
physics" of Calhoun. Marshall clearly taught that an Ameri- 
can constitution is not a "compact" but "an instrument of 
perpetual efficacy," when in McCulloch v. Maryland,^ he held 
that the government of the Union is a government of the peo- 
* American Commonwealth, i, 322-323. 2 ^ Wheat. 316. 



X.] SIXTY-ONE YEARS' OF CONSTITUTIONAL GROWTH 3II 

pie, emanating from them, and deriving its powers from them. 1 
Though limited in its powers, it is supreme within its sphere, 1 
and its laws are the supreme law of the land. In that case he \ 
said: "A constitution, to contain an accurate detail of all the 
subdivisions of which its great powers will admit, and of all the 
means by which they may be carried into execution, would 
partake of the prolixity of a legal code, and could scarcely be I 
embraced by the human mind. It would probably never be I 
understood by the public. Its nature, therefore, requires that f 
only its great outlines should be marked, its important objects | 
designated, and the minor ingredients which compose those % 
objects be deduced from the nature of the objects themselves." | 
In his view all such deductions were to be made by the judicial | 
power. The good work thus begun by Marshall was completed ? 
when, in Texas v. White, ^ Chief Justice Chase declared, after Chase's 
the close of the Civil War, that in the Constitution of the ^°^^"°«* 
United States is embodied "an indestructible union of inde- 
structible states." If we had accepted from the outset those 
sane and legitimate definitions of a constitution as laid down 
by Marshall and Chase, the untenable assumption that a con- 
stitution is a "compact" — the outcome of the now entirely 
discredited theory of the social contract, which passed from 
Hobbes to Rousseau and from Rousseau to Jefferson — could 
never have entered the arena of American politics with its long 
train of false and misleading analogies. 

While declining the moral responsibility for it at the time, Jefferson's 
Jefferson undertook to carry on a political propaganda through moral respons- 
the resolutions in question, which were transmitted to all ibiiity. 
representatives in Congress and to the other states, with the 
view of eliciting sympathetic responses. The only responses 
actually made were sharply antagonistic to the resolutions. 
Such was the nature of the replies made by Delaware, Febru- 
ary I, 1799, by Rhode Island in February, by Massachusetts, 
February 9, by New York, March 5, by Connecticut, May 9, 
by New Hampshire, June 14, by Vermont, October 30. Massa- 
chusetts, in a long and argumentative response, took special 
pains to deny the competency of any state legislature "to I 
judge of the acts and measures of the Federal Government." ^ 

1 7 Wall. 700. 

» Cf. Johnston, American Political History, 1763-1876, part i, p. 189. 



312 



THE AMERICAN CONSTITUTION 



[Ch. 



Hartford Con- 
vention, 1814. 



New England 
opposition to 
"restrictive 
system." 



Federalist 
opposition to 
War of 1813. 



Just as the conflict with France in 1798 led to the contro- 
versy between the national and provincial forces out of which 
grew the Southern manifesto embodied in the Kentucky and 
Virginia Resolutions of that year, so the conflict with Great 
Britain in 18 12, for the establishment of neutral rights, led 
to the controversy between the same forces out of which grew 
the Northern manifesto embodied in the proceedings of the 
convention that met at Hartford in 18 14. As early as 178 1 the 
name "Essex Junto" was applied by John Hancock to a group 
of leaders centred in Essex County, Massachusetts, who were 
specially obnoxious to the Anti-Federalists of that state be- 
cause they were impelled as representatives of commercial 
interests to desire a stronger federal government. Nothing was 
more natural than that this group, after the adoption of the 
Constitution, should have become an important factor in 
the Federal party as directed by Washington and Hamilton. 
After the accession of Adams, the junto, which allied itself 
rather with Hamilton than with the President, so far incurred 
his hostility that he stigmatized them as a "British faction," 
unworthy of American recognition because, as he alleged, they 
were chiefly responsible for the attempt to force war upon 
France in 1798-99. 

As in this group was embodied in a pronounced form the 
New England opposition to the "restrictive system," it be- 
came convenient in the rest of the Union, almost entirely 
Republican in politics, to attribute all the evils arising out of 
the resistance to the Embargo, the alleged intention to secede 
in 1808, and the determined opposition to the war with Great 
Britain to that local type of New England Federalism which 
the evil spirit of the "Essex Junto" was supposed to have 
produced. In 1812 only in New England did the Federal party 
still maintain an organization as such, — the administration 
of the government being in the hands of the Democratic- 
Republicans, representing a coalition of the South and West, 
intent upon war and an invasion of Canada in order to com- 
pel Great Britain to give up the right of imprisonment, search, 
and paper blockade. 

Against the war declared by the Act of June 18, the Federal- 
ists were unanimously opposed, because, as they contended, 
while French aggressions had never really ceased, the effects 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 313 

of the British Orders in Council were not sufficiently damag- 
ing to American trade to warrant the destruction of what 
remained of it on that account. Out of that spirit of hostil- 
ity to the war grew the contention of the governors of Con- 
necticut and Massachusetts that they were required by law 
to furnish troops only to suppress insurrections, or repel in- 
vasions, when, on June 12, the President called upon them 
to supply detachments of militia for garrison duty. The dis- 
position thus manifested in New England to construe strictly 
and to resist the powers of the Federal Government met with 
such popular approval there that in 1813 the Federal party 
won a majority in every state election; and when the Congress 
met in May the House — the New York delegation having 
become largely Federalist — contained 68 peace to 112 war 
members. Thus emboldened by success, the legislature of 
Massachusetts declared the war "impolitic and unjust," even 
going so far as to refuse votes of thanks for naval victories 
"not immediately connected with the defense of our seacoast 
and soil." 

From Massachusetts the spirit of opposition to the war Massachusetts 
passed to all New England, then suffering from a combination ^^°"° centre. 
of grievances, chief among which was the Embargo enacted 
to counteract the British exemption of that coast, whose de- 
fense had been neglected, from blockade, and the destruction 
of its commerce and fisheries, for which infant manufactures 
and privateering were not an adequate substitute. When 
under such conditions the Massachusetts Legislature, on Octo- 
ber 18, 1814, accepted the proposal of a convention of the New 
England States to "lay the foundation of a radical reform in 
the national compact by inviting to a future convention a 
deputation from all the other states in the Union," Connecti- 
cut and Rhode Island promptly followed her lead, — the first- 
named with the proviso that the deliberations were to be 
limited to matters "not repugnant to their obligations as 
members of the Union," a qualification restated in substance 
by the other two. \^''-^ 

On December 15,^ the convention met at Hartford, with Convention at 
twelve delegates from Massachusetts, seven from Connecti- Hartford, Dec. 
cut and four from Rhode Island, two from New Hampshire 
and one from Vermont. After secret session of three weeks 



314 



THE AMERICAN CONSTITUTION 



[Ch. 



Scope of its 
work. 



The voice of 
Jefferson. 



Changes in 

Constitution 

recommended. 



the twenty-six delegates prepared a report to their respective 
legislatures and adjourned January 15, 1815. On November 
16, 1 819, the president, George Cabot, deposited its journal 
with the Secretary of State at Boston, and in 1833 the history 
of the Hartford Convention was written by its secretary, 
Theodore D wight, editor of the " Hartford Union." With the 
sources of information thus available, there is now no mystery 
as to the scope of what was actually undertaken. So redolent 
is the report of the aroma of the Kentucky and Virginia Reso- 
lutions that it is hard to forget for the moment that they were 
not a New England product. In the proposal for the meeting 
the Constitution is called "the national compact," which is 
not to be dissolved, unless such a dissolution should be neces- 
sary "by reason of the multiplied abuses of bad administra- 
tions; it should, if possible, be the work of peaceable times and 
deliberate consent." It gravely proposed that Congress should 
confide to the states their own defense, a certain proportion of 
the taxes raised in the respective states to be paid into the 
•state treasuries for that purpose. With that proposal was 
coupled the declaration that "it is as much the duty of the 
state authorities to watch over the rights reserved as of the 
United States to exercise the powers which are delegated." 
One can almost hear in these words the voice of Jefferson 
repeating that when there has been an exercise of federal 
powers not granted "by the said compact, the states, which 
are parties thereto, have the right, and are in duty bound 
to interpose, for arresting the progress of the evil, and for 
maintaining, within their respective limits, the authorities, 
rights, and liberties appertaining to them." 

In addition to the New England grievances already men- 
tioned, the report referred to "the easy admission of natural- 
ized foreigners to places of trust, honor, and profit," and to 
"the admission of new states formed at pleasure in the West- 
ern regions" by which the original balance of the sections was 
destroyed. Extreme measures were not, however, to be taken, 
the Union was not to be broken up, if the following changes 
in the Constitution, which it recommended, should be made. 
In the first place the three-fifths rule regulating the representa- 
tion of slaves should be abolished; in the second, no new state 
should be admitted without a two-thirds vote of both Houses; 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 315 

in the third, embargoes should be limited to sixty days ; in the 
fourth, commercial intercourse should only be prohibited by a 
two- thirds vote of both Houses; in the fifth, such a vote should 
be required to declare war or authorize hostilities, except in 
case of invasion ; in the sixth, naturalized foreigners should be 
excluded from Congress and from all civil offices under the 
Federal Government; in the seventh, the President should not 
be reeligible, and should not be taken from the same state two 
terms in succession. Before the arrival of the commissioners How the con- 
sent by the legislatures of Massachusetts and Connecticut to annihilated. 
Washington to urge the proposed amendments, this grave 
design against the Union was annihilated by Jackson's brilliant 
victory at New Orleans which resulted in an honorable peace 
with England. As an eminent historian has graphically 
expressed it: "The commissioners found themselves only the 
discredited agents of a meeting of secret conspirators against 
the unity of the Republic, and of states that had deserted 
their country in its hour of sorest need. No attention was paid 
to their recommendations, nor was any renewal of the con- 
vention ever attempted." ^ 

Daniel Webster, in the course of his great debate with Hayne Daniel 
upon the subject of nullification, in demonstrating what the ^^g^L^ 
South Carolina doctrine would have accomplished in New 
England if it had been acted upon by the Hartford Conven- 
tion, said: "Let me here say, sir, that, if the gentleman's 
doctrine had been received and acted upon in New England 
in the times of the embargo and non-intercourse, we should 
probably not now have been here. The government would, 
very likely, have gone to pieces, and crumbled into dust. No 
stronger case can ever arise than existed under these laws ; no 
states can ever entertain a clearer conviction than the New 
England States then entertained ; and if they had been under 
the influence of that heresy of opinion, as I must call it, which 
the honorable member espouses, this Union would, in all 
probability, have been scattered to the four winds. I ask the 
gentleman, therefore, to apply his principles to that case; I 
ask him to come forth and declare, whether, in his opinion, 
the New England States would have been justified in interfer- 
ing to break up the embargo system, under the conscientious 
^ Johnston, Am. Polit. Hist., 1763-1876, part i, p. 316. See also p. 308 sq. 



3i6 



THE AMERICAN CONSTITUTION 



[Ch. 



South 

Carolina and 
nullification. 



Tariff a polit- 
ical issue 
after 1824. 



Calhoun. 



opinions which they held upon it? Had they a right to annul 
the law?" 1 

The same warrior-statesman, who checked in 18 14 by his 
triumph in the field a provincial and selfish movement in New 
England down the path toward disunion, checked in 1832 just 
such a movement when South Carolina attempted to follow 
the same path under the banner of nuUification. While the 
South did not oppose the protective tariff of 18 16, so favorable 
to the sale of her cotton, she did oppose as time went on any 
further increase of duties on foreign goods, the Southern ele- 
ment in Congress defeating in 1822 a proposal to make the 
tariff more protective. The tariff of 1824, more advanced in 
its purpose than any other to exclude from American markets 
foreign competing goods, was passed by a small majority of 
Northern members opposed by the almost unanimous vote 
of the Southern, who claimed that it was not only unjust and 
sectional but unconstitutional. From that time the tariff ques- 
tion became political, dividing Whigs from Democrats about 
equally; and also sectional, uniting the West, Centre, and East 
against the solid South, except Louisiana. In 1824 Calhoun 
and Jackson voted for the last time for protection; and in that 
year Webster made his last speech for free trade. The tariff 
of 1828 marks an era in the history of our economic legislation. 
From that time dates the serious division between the North 
and the South, out of which, emerged the doctrine of nulli- 
fication, defined to be the formal suspension by a state of the 
operation of a federal law within its jurisdiction. The appli- 
cation of that doctrine to practical politics was first made by 
John C. Calhoun, then the ablest and most influential states- 
man of the South, born in South Carolina in 1782, of Irish- 
Presbyterian parentage. Although high-thoughted, gifted, and 
cultured, his mind was overmastered by "a mass of subtle and, 
so to speak, scholastic metaphysics regarding the nature of 
the government it [the Constitution] created." It is hardly 
conceivable that the heresy of nullification could have eman- 
ated from a mind with an inborn genius for law. Such a mind 
was that of Daniel Webster, who, in the famous debate with 
Hayne, — the spokesman of Calhoun, then President of the 
Senate, — in the winter of 1829-30, thus restated in that body 
^ Benton's Thirty Years' View, 139. 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 317 

the doctrine in question as he understood it: "I understand Nullification 
the honorable gentleman from South Carolina to maintain, ^^ebs^j^r'^ 
that it is a right of the state legislature to interfere, whenever, 
in their judgment, this government transcends its constitu- 
tional limits, and to arrest the operation of its laws. I under- 
stand him to maintain this right, as a right existing under the 
Constitution ; not as a right to overthrow it, on the ground of 
extreme necessity, such as would justify violent revolution. 
I understand him to maintain an authority, on the part of 
the states, thus to interfere, for the purpose of correcting the 
exercise of power by the general government, of checking it, 
and of compelling it to conform to their opinion of the extent 
of its powers. I understand him to maintain that the ultimate v 

power of judging of the constitutional extent of its own author- 
ity is not lodged exclusively in the general government, or any 
branch of it ; but that on the contrary, the states may lawfully ^ 

decide for themselves, and each state for itself, whether, in a 
given case, the act of the general government transcends its 
power. I understand him to insist that, if the exigency of the 
case, in the opinion of any state government, require it, such 
state government may, by its own sovereign authority, annul 2x 

an act of the general government, which it deems plainly and ^ 
palpably unconstitutional." ^ 

When Hayne attempted to answer, without accepting or Hayne's de- 
rejecting Webster's definition, he admitted the parentage of ^^^^^e based 
nullification by resting it upon the third resolve of the Vir- Resolutions, 
ginia Resolutions of 1798, reaffirmed in 1799. Thus out of the 
Pandora's Box, opened by Jefferson in the Kentucky and Vir- 
ginia Resolutions, came first the Hartford Convention, and 
next the doctrine of nullification, which proposed to transfer 
the final arbitrating power from the federal judiciary to any 
state that might see fit to constitute itself the ultimate judge. 
In other words, the doctrine was that whenever a state be- 
lieved that its agent, the Federal Government, had unlawfully 
executed a power delegated to it, it was its constitutional right 
to suspend the exercise of that power, even after it had crys- 
tallized into a statute, until such time as the power in question 
should be properly exercised. Such seems to have been Cal- ^btie'^re"*^°° 
houn's thought — deemed by Alexander H. Stephens "too statement. 
1 Benton's Thirty Years' View, 138-139. 



318 



THE AMERICAN CONSTITUTION 



[Ch. 



Banquet of 
April 13, 1830, 
Jackson and 
Calhoun. 



Benton's 
comment. 



subtle" for common comprehension — when in February, 
1833, he said: "It is a gross error to confound the exercise of 
sovereign power with sovereignty itself or the delegation of such 
powers with the surrender of them. A sovereign may delegate 
his powers to be exercised by as many agents as he may think 
proper, under such conditions and with such limitations as he 
may impose ; but to surrender any portion of his sovereignty 
to another is to annihilate the whole." 

The metaphysical brain-child which Hayne had sworn to 
Jefferson was taken to a great feast given at Washington 
April 13, 1830, in honor of his birthday, celebrated by a com- 
pany at whose head sat the President, Andrew Jackson, and 
the Vice-President, John C. Calhoun. These gladiators, who 
had once been close friends, drew their swords when, at the 
end of the twenty-four regular toasts, all devised in the in- 
terest of nullification, President Jackson offered the famous 
one, "Our Federal Union; it must be preserved," — to which 
Calhoun repHed, "The Union, next to our liberty the most 
dear; may we all remember that it can only be preserved by 
respecting the rights of the states, and distributing equally the 
benefit and the burden of the Union." ^ The issue was thus 
clearly made up between the supremacy of the Union and the 
supremacy of any state that might see fit to challenge its 
ultimate authority. Benton, who was present at the dinner, 
speaks thus of Calhoun's toast: "This toast touched all the 
tender parts of the new question — liberty before union — 
only to be preserved — state rights — inequality of burdens 
and benefits. These phrases, connecting themselves with Mr. 
Hayne's speech, and with proceedings and publications in 
South Carolina, unveiled Nullification as a new and distinct 
doctrine in the United States, with Mr. Calhoun for its apostle, 
and a new party in the field of which he was the leader. The 
proceedings of the day put an end to all doubt about the 
justice of Mr. Webster's grand peroration, and revealed to the 
public mind the fact of an actual design tending to dissolve 



^ Benton says: " I soon discovered 
what it was — that it came from 
the promulgation of twenty-four 
regular toasts, which savored of the 
new doctrine of nullification; and 
which, acting on some previous mis- 



givings, began to spread the feeling, 
that the dinner was got up to in- 
augurate that doctrine, and to make 
Mr. Jefferson its father." Thirty 
Years' View, 148. 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 319 

the Union." In the peroration referred to, Webster had said in 
replying to Hayne: "When my eyes shall be turned to behold, 
for the last time, the sun in heaven, may I not see him shining 
on the broken and dishonored fragments of our once glorious 
Union; on states dissevered, discordant, beUigerent; on a land 
rent with civil feuds, or drenched, it may be, in fraternal 
blood." Such was Webster's prophetic vision of the Civil War 
in which his son perished in defense of the Union. 

Despite the fact that nullification had found a lion in its Calhoun's dis- 
path in the person of Andrew Jackson, Calhoun persisted, 1^*^*^183°^ 
pubHshing in July, 1831, in a South Carolina newspaper, a 
dissertation upon it, in which, after justifying its expediency 
and constitutionality, he contended that unless Congress at its 
approaching session should eliminate the protective features 
of the tariff, South Carolina should force the issue by nullifying 
the law through a refusal to permit the collection of duties 
within the state. Such was the prelude to Clay's tariff bill 
which became law, July 14, 1832, not to take effect, however, 
until March 3, 1833. In the October following its passage the 
legislature of South Carolina was convened for the purpose of 
calling a state convention, which passed, November 24, an Nullification 
ordinance of nullification, declaring the tariff acts of 1828 and ?!<^i^^°^^ °^ 
1832 to be null and void, and not binding on the state, its 1832. 
citizens, or officers; prohibiting the payment of duties under 
either act within the state after February i, 1833, and making 
any appeal to the Supreme Court of the United States as to 
the validity of the ordinance a contempt of the state court 
from which the appeal was taken. As the ordinance gave warn- 
ing that South Carolina would proceed forthwith to organize 
a separate government if the federal power should attempt to 
use the army or navy or should by closing the ports of the 
state obstruct in any way its foreign commerce, the President 
had, on November 6, 1832, instructed the collector at Charles- 
ton to provide as many boats and inspectors as might be 
necessary to seize every vessel entering the port and keep it 
in custody until the duties should be paid, — "to retain and 
defend the custody of the said vessel against any forcible 
attempt," and to refuse to obey the legal process of state 
courts designed to remove the vessel from his custody. After 
ordering General Scott to Charleston to support the collector, 



320 



THE AMERICAN CONSTITUTION 



[Ch. 



Nullification 
Proclamation 
of Dec. II. 



Act of March 
2, 1833. 



Compromise 
tarifi of March 
2, 1833. 



and sending a naval force to the harbors of the state, the 
President, on December 11, issued his "Nullification Proclam- 
ation," in which he warned the people of South Carolina in 
these clear and unmistakable terms: "The dictates of a high 
duty oblige me solemnly to announce that you cannot succeed. 
The laws of the United States must be executed. I have no 
discretionary power on the subject — my duty is emphatically 
pronounced in the Constitution. Those who told you that you 
might peaceably prevent their execution deceived you — they 
could not have been deceived themselves. Their object is 
disunion, and disunion by armed force is treason. Are you 
ready to incur its guilt? If you are, on your unhappy state 
will fall all the evils of the conflict you force upon the govern- 
ment of your country." 

After that matchless utterance, so full of moral dignity, 
Congress strengthened the President's hands by the Act of 
March 2, 1833, empowering him to alter or abolish revenue 
districts, to remove custom-houses, and to use the land and 
naval forces for the protection of the revenue officers against 
attempts to recover property by force. Under these conditions 
the federal revenue was collected as usual after February i, 
1833, despite the anathemas of the ordinance of nullification. 
A private "meeting of leading nullifiers" had decided at 
Charleston in January that the enforcement of the ordinance 
should be suspended until after the adjournment of Congress. 
Thus it appears that the power of suspending a federal statute 
had first been assumed by a state convention; and then its 
organic act was suspended by a meeting of private citizens! 
Such was the result brought about through the indomitable 
courage of the President in upholding the supremacy of the 
national authority. Jackson was, however, thoroughly in favor 
of a revision of the tariff in the direction claimed by the nulli- 
fiers; and the result was the Clay compromise tariff bill, whose 
signature by the President on March 2, 1833, was followed by 
the repeal of the ordinance of nullification by the South Caro- 
lina Convention, on March 16. South Carolina thus succeeded 
in bringing about a concession that secured to the country a 
progressively less protectionist tariff for the next nine years. 

The doctrine of nullification, put forward as the extremest 
possible assertion of state sovereignty, should not be confused 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 32 1 

with the doctrine of secession subsequently employed as a The doctrine 
weapon for the defense of slavery. While both doctrines were °^ secession, 
drawn from a common source, the logical processes by which 
they were defended were entirely different. Admitting Cal- 
houn's fundamental concept that a constitution is "a com- 
pact" of the Hobbes-Rousseau type, his deduction that while 
the compact was still undissolved a law enacted under its 
authority could be annulled by one of its subscribing members 
was a palpable non-sequitur. With no logical consistency 
could it be contended that a state could remain in the Union, 
enjoying all its benefits, and at the same time nullify its laws 
at pleasure. So palpable was that difficulty that when the 
tariff of 1842 was enacted neither Calhoun nor any one else Nullification 
ever suggested a revival of that hopeless expedient. But when * *° ° 
the time came to put forward the doctrine of secession as a 
means of dissolving the Union, that contention assumed a more 
formidable aspect. If the premise upon which that doctrine 
rested was once conceded, the conclusion was irresistible. If 
it was true, as Calhoun contended, that a constitution was 
merely a compact, and not "an instrument of perpetual 
efficacy," as it is now understood to be, then it was hard to 
deny that it was not dissolvable at pleasure. The entire argu- 
ment in favor of secession depended alone upon the soundness 
of the premise upon which Calhoun rested it. 

Within the last fifty or sixty years the Historical School of A constitution 
Jurisprudence has been able to explain to all students of gov- of'perpet^' 
ernment and law what a constitution really is. The conclusion efficacy. 
that it is "an instrument of perpetual efficacy" and not a 
mere "compact" is the ripe fruit of that teaching. The now 
exploded and discredited theory of the contrat social popularized 
by Rousseau rested upon the assumption that men in a state 
of nature were independent and isolated individual units with 
the power to enter into contracts or compacts with each other. 
Out of such a condition of things social organization was sup- 
posed to have arisen. The Historical School has demonstrated 
long ago that at the beginning of social organization there were 
no independent individual units capable of contracting with 
each other ; on the contrary the individual was then swallowed 
up in a family corporation under the despotic government of 
a patriarchal chief, who was at once general, priest, and law- 



322 



THE AMERICAN CONSTITUTION 



[Ch. 



Declaration of 
the Rights 
of Man. 



Influence of 
Kentucky 
and Virginia 
Resolutions. 



giver. At the outset the individual as such did not exist at all.^ 
The historical importance of Rousseau's political theory of the 
social contract is embodied in the fact that it is mainly answer- 
able for the Declaration of the Rights of Man,^ sound in many 
particulars, which, at an early stage of the French Revolution, 
asserted among other things that all men are born and con- 
tinue free and equal in rights ; that society is an association of 
men to preserve the natural rights of men; that the law can 
forbid only such actions as are mischievous to society; that 
law must be reasonable; it must have no retroactive force; a 
society, the rights of which are not assured, the powers of which 
are not definitely distributed, has no constitution. 

As Jefferson was in France at the time the Federal Conven- 
tion of 1787 was in session, it was not in his power to infuse 
into its proceedings the French political theories with which he 
had veneered a part of the Declaration of Independence. Not 
until the time came for him to draft the Kentucky and Vir- 
ginia Resolutions did it become possible for him to pour into 
the stream of American political thought the ideas he had de- 
rived from Rousseau. From 1798 down to the beginning of the 
Civil War every discontented section or faction that desired 
to revolt against the national authority went to the fountain 
thus opened for arguments to justify the contention that those 
who were ill-used within the Union had the right to cancel 
the "compact " and to withdraw from it. The drafts thus made 
on the common source were absolutely non-sectional. As the 
pressure of the national authority fell first upon New England, 
it was that section that first threatened to employ what was 
for a long time considered as an obvious method of redress. It 
was at a comparatively late day that the South was tempted 
to use the doctrine of secession as a weapon with which to 
defend slavery. So long as there was a chance for that section 
to preserve the ascendancy of the slave power through the 
admission of new states, its ambition was to remain within 
the Union and dominate it. Never, until that battle was lost 
by the exhaustion of slave territory through the admission of 
Florida and Texas in 1845, was the South prompted to appeal 



* Cf. Maine, Village Communities, 
1553. 

* For the full text of that docu- 



ment see Henri Martin's Histoire de 
la France depuis 1779, i, 78. 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 



323 



to the right of secession as a means of defending its special 
institution. 

It is said that the doctrine of secession was first defined in 
print in a series of articles that appeared in the Connecticut 
"Courant" soon after 1795, containing a declaration of "the 
impossibility of union for any long period in the future," 
coupled with the assurance that "there can be no safety to the 
Northern States without a separation from the Confederacy," 
— a New England apprehension quieted by the election of 
Adams in 1796. Five months before the Kentucky Resolu- 
tions were introduced, Jefferson, in a letter to John Taylor of 
Caroline, dated June i, 1798, after tacitly assuming that the 
right of secession existed, thus expressed himself as to the 
expediency of its exercise: "If, on a temporary superiority of 
one party, the other is to resort to a scission of the Union, no 
federal government can ever exist. If, to rid ourselves of the 
present rule of Massachusetts and Connecticut, we break the 
Union, will the evil stop there? Suppose the New England 
States alone cut off, will our natures be changed? Are we not 
men still to the south of that, with all the passions of men? . . . 
Seeing that we must have somebody to quarrel with, I had 
rather keep our New England associates for that purpose." 

From that quarter came a very decided counterblast when 
the Federalists of New England, alarmed by the victory won 
by the South in the acquisition of Louisiana, began to see 
visions of six, nine, or even a dozen new states built up by "the 
wild men on the Missouri." Not, however, until January, 181 1, 
when the enabling act for the admission of Louisiana was actu- 
ally before the House, did Quincy of Massachusetts venture to 
declare: "It is my deliberate opinion, that, if this bill passes, 
the bonds of this Union are virtually dissolved ; that the states 
which compose it are free from their moral obUgations; and 
that, as it will be the right of all, so it will be the duty of some, 
to prepare definitely for a separation, amicably if they can, 
violently if they must." No matter whether a project of seces- 
sion was actually mooted in Massachusetts in 1803 or not, 
certain it is that the movement in that direction at a little 
later day was sufficiently pronounced to prompt Justice Story 
to write on January 9, 1809: " I am sorry to perceive the spirit 
of disaffection in Massachusetts increasing to so high a degree; 



Doctrine of 

secession first 
defined about 
1795- 



Jefierson's 
view of it 
in 1798. 



Quincy's out- 
cry in 1811. 



Story and 
Henry in 1809. 



324 THE AMERICAN CONSTITUTION [Ch. 

and I fear that it is stimulated by a desire, in a few ambitious 
men, to dissolve the Union." John Henry, who had been sent 
by Craig, governor of British North America, to report upon 
the state of affairs and political feeling in the New England 
States, reported in his letter of March 7, 1809, describing the 
Federalist programme, that, in the event of war, "the legis- 
lature of Massachusetts will declare itself permanent until a 
new election of members ; invite a congress, to be composed of 
delegates from the Federal States; and erect a separate gov- 
ernment for their common defense and common interest." 
Hartford Con- The Hartford Convention, as we are informed by its report, 
vention, 1814. dealt with the question in 18 14, in this wise: "If the Union 
be destined to dissolution, by reason of the multiplied abuses 
of bad administrations, it should, if possible, be the work of 
peaceable times and deliberate consent. Some new form of 
Confederacy should be substituted among those states which 
shall intend to maintain a federal relation to each other. But, 
a severance of the Union by one or more states, against the 
will of the rest, especially in time of war, can be justified only 
by absolute necessity." The same general idea had been ex- 
Tucker's Black- pressed by Tucker of Virginia in his edition of Blackstone in 
stone, 1803. 1803, in which, after declaring the Federal Government to be 
only "the organ through which the united republics commun- 
icated with foreign nations and with each other," he said: 
"Each is still a perfect state, still sovereign, still independent, 
and still capable, should the occasion require, to resume the ex- 
ercise of its functions, as such, to the most unlimited extent. 
But, until the time shall arrive when the occasion requires a re- 
sumption of the rights of sovereignty by the several states 
(and far be that period removed when it shall happen), the 
exercise of the rights of sovereignty by the states individually 
is wholly suspended or discontinued, in the cases before men- 
tioned; nor can that suspension ever be removed, so long as 
the present Constitution remains unchanged, but by the dis- 
solution of the bonds of union." In 1825 a doctrinaire from 
Judge Rawle, the North, Judge Rawle, of Pennsylvania, in his well-known 
1825. "Commentaries on the Constitution," said: "The secession of 

a state from the Union depends on the will of the people of 
such state. . . . The state legislatures have only to perform 
certain organical operations in respect to it. To withdraw from 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 325 

the Union comes not within the general scope of their dele- 
gated authority. But in any manner by which a secession is 
to take place, nothing is more certain than that the act should 
be deliberate, clear, and unequivocal; and in such case the 
previous ligament with the Union would be legitimately and 
fairly destroyed." 

It is impossible to review these early declarations upon the Persistency of 
subject of secession, put forth before the existence of the nation ^ constitution 
was clearly recognized, without perceiving, first, that the fact isa"com- 
that the old Confederacy had been superseded by a National ^^^^' 
Government with a real Constitution acting directly on the 
citizen was not then clearly understood ; second, that the fact 
that a national constitution is not a "compact" but "an in- 
strument of perpetual efficacy," construable by the judicial 
power, was not at all understood. Now that the conception 
of a constitution as "a compact," born of the poHtics of the 
French Revolution, has passed forever away, it is difficult to 
realize how completely it dominated a very large class of our 
political thinkers for nearly seventy years. With them it was 
a living, tangible reality. It slowly died out, as thinking men 
perceived that it was impracticable. Jefferson, who never 
deceived himself, summed up that aspect of the matter when 
he said : " If we reduce our Union to Virginia and North Caro- 
lina, they will end by breaking into their simple units." As 
the growth of the national life advanced through the power of Extinguished 
intercommunication, the possibility of its dissolving into its ^tfonaJ^Uff 
original units became more and more abhorrent. There was 
but one counterforce to keep the old idea alive, and that was 
the necessity for its use as a weapon with which to defend 
slavery. After that incentive was removed by the destruc- 
tion of slavery in the Civil War, nothing whatever remained 
to support it. After it had thus died a natural death, the 
Historical School completed its demonstration that the whole 
social contract theory, out of which arose the idea that a 
constitution is a " compact," was "one of the most successful 
and fatal of political impostures"; that at the beginning of 
society men were in a condition the very opposite of that in 
which Hobbes and Rousseau assumed them to be. Antecedents of 

And yet the fact remains that when in 1847 Calhoun took doctrine taken 

. J . . up by Calhoun 

up the doctrine of secession as a weapon with which to defend in 1847. 



326 



THE AMERICAN CONSTITUTION 



[Ch. 



Garrison's use 
of it in 1845. 



Calhoun's 
move for co- 
operation in 
1847. 



slavery, he found it established and popularized by fifty years 
of preceding American history. During that time it had been 
used as a menace by every provincial minority discontented 
with the exercise of the growing national authority. Nowhere 
had it been so persistently or so aggressively used as in New 
England, where its popularity had not diminished down to that 
time. Only two years before, in 1845, William Lloyd Garrison, 
at an anti-annexation convention in Boston, had demanded 
the calling of a Massachusetts convention to declare the Union 
dissolved, and to invite other states to join with her in a new 
union to be based on the principles of the Declaration of Inde- 
pendence. From May's "Anti-Slavery Conflict"^ we learn 
that "although his motion was not carried by the convention 
it was received with great favor by a large portion of the mem- 
bers and other auditors, and he sat down amidst the most 
hearty bursts of applause." 

As we have seen already, the South's first grievance against 
the Union grew out of protective tariffs, which her statesmen 
denounced as legalized robbery. Against that grievance South 
Carolina made an unsuccessful battle alone, under the banner 
of nullification, not involving the question of slavery at all. 
Not until the South clearly foresaw that she was to lose con- 
trol of the Federal Government, through the more rapid 
growth of free than slave states, did the doctrine of secession 
really become a part of her policy. The last slave territory was 
annexed with the admission of Florida and Texas in 1845, and 
in 1847 Calhoun made his move for "cooperation" of the slave 
states upon a certain basis, ^ which, though unsuccessful, paved 
the way for a bolder programme in 1850, which proposed the 
joint secession of a number of slave states, for mutual defense, 
in the event that any prohibition of slavery in the new terri- 
tories should be insisted upon. While at that time the Southern 
States adhered to the resolve of the Georgia State Convention 
of 1850 to accept the compromise of that year, they were prob- 
ably prepared to resist, even to the point of secession, such 
anti-slavery legislation as involved the abolition of slavery 



^ Page 320. See also Johnston, 
American Political History, 1763- 
1876, part ii, pp. 280-311. 

2 The slave states were to be 
asked to cooperate in an interstate 



embargo system designed to detach 
from the Eastern States the North- 
west, in the hope that that section 
would unite with the South in open- 
ing the new territories to slavery. 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 327 

in the Territories, or in the District of Columbia, or of the 
interstate slave trade. But long before that point had been 
reached, the question of questions — is the Constitution a 
"compact," dissolvable at pleasure by any state that sees fit 
to withdraw from it? — had been thrashed out on the floor of 
the Senate by Webster and Calhoun. With the lights now 
before us it is hard to comprehend how the latter could have 
ventured to assume that the entirely new conception of a 
federal government embodied in the unique creation of 1787, 
operating directly on the citizen, had really wrought no change 
in our condition ; that after its adoption the Constitution was 
still nothing more than the loose league that had preceded it. 
His attitude in that regard has thus been stated by a very His view of the 
recent biographer: "The generalizations of the 'Disquisition Constitution. 
on Government' Calhoun made immediately applicable in 
his 'Discourse on the Constitution and Government of the 
United States.' 'Ours,' it says, 'is a democratic federal re- 
public,' — democratic, because the people are the source of 
all power, — federal, because it is 'the government of a com- 
munity of states, and not the government of a single state or 
nation.' Under the Constitution the states should be as free, 
independent, and sovereign, as they were under the Articles 
of Confederation."^ Upon that assumption, historically as 
unsound perhaps as any one that could have been devised, 
Calhoun based his famous nullification resolutions of Janu- His resolutions 
ary 22, 1833, in which he contended "that the people of the of January 22, 
several states composing these United States are united as ^ ^^' 
parties to a constitutional compact, to which the people of each 
state acceded as a separate sovereign community, each binding 
itself by its own particular ratification; and that the Union, of 
which the said compact is the bond, is a union between the 
states ratifying the same; . . . that whenever the general 
government assumes the exercise of powers not delegated by 
the compact, its acts are unauthorized, and are of no effect; 
and that the same government is not made the final judge of 
the powers delegated to it, since that would make its discre- 
tion, and not the Constitution, the measure of its powers; but 
that, as in all other cases of compact among sovereign parties, 
without any common judge, each has an equal right to judge 
^ Gaillard Hunt's Calhoun, 96. 



328 



THE AMERICAN CONSTITUTION 



[Ch. 



His famous 
speech of 
February 15. 



Webster's 
reply. 



Calhoun's last 
speech, March 
4, 1850. 



for itself, as well of the infraction as of the mode and measure 
of redress." ^ Here we have in all its baldness, with almost an 
identity of language, the theory of a constitution as a dissolv- 
able compact, entirely beyond the arbitrating power of the 
judiciary, as Jefferson, who had taken it from Rousseau and 
his school, had restated it in the Kentucky and Virginia Reso- 
lutions of 1798. Calhoun, who was a master of "scholastic 
metaphysics," and far more of a political dreamer of the Rous- 
seau type than Jefferson, entered with the sincere enthusiasm 
of a devotee into every shadowy subtlety his position involved 
when, on February 15, he spoke in favor of his resolutions. In 
closing, he challenged the opponents of his doctrines to dis- 
prove them, warning them, in his concluding sentence, that 
the principles they might advance would be subjected to 
revision by posterity. Long ago posterity has given its ap- 
proval to the opposing theory of a constitution embodied in 
the crushing reply in which Webster declared: "i. That the 
Constitution of the United States is not a league, confederacy, 
or compact, between the people of the several states in their 
sovereign capacities; but a government proper, founded on 
the adoption of the people, and creating direct relations be- 
tween itself and individuals. 2. That no state authority has 
power to dissolve these relations; that nothing can dissolve 
them but revolution; and that, consequently, there can be no 
such thing as secession without revolution. 3. That there is 
a supreme law, consisting of the Constitution of the United 
States, and acts of Congress passed in pursuance of it, and 
treaties; and that, in cases not capable of assuming the char- 
acter of a suit in law or equity, Congress must judge of, and 
finally interpret, this supreme law so often as it has occasion 
to pass acts of legislation; and in cases capable of assuming, 
and actually assuming, the character of a suit, the Supreme 
Court of the United States is the final interpreter." ^ Each 
persevered in his contention to the end. Calhoun in his last 
speech in the Senate, March 4, 1850, said: "If you who re- 
present the stronger portion, cannot agree to settle the great 
questions at issue on the broad principle of justice and duty, 
say so ; and let the states we both represent agree to separate 

^ See Benton's Thirty Years' ' Webster's Writings and Speeches, 

View, 334. vi, 180-198. 



X.1 SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 329 

and depart in peace. If you are unwilling we should part in 
peace, tell us so, and we shall know what to do." Three days 
later Webster exclaimed: "Secession! Peaceable secession! 
Sir, your eyes and mine are never destined to see that miracle. 
The dismemberment of this vast country without convulsion ! 
The breaking up of the fountains of the great deep without 
ruffling the surface! Peaceable secession is an utter impos- 
sibility." Thus was made up the issue finally submitted to the 
arbitrament of Civil War. 

Clear as it is that secession as a means of dissolving the Tworevolu- 
Union was an extra-constitutional remedy, absolutely in- tioi^ary move- 
compatible with the nature of "an instrument of perpetual 
efficacy" whose interpretation belongs to the judicial power, 
it is clearer still that the conduct of all who refused to abide by 
the judgment of the Supreme Court in the Dred Scott case was 
purely revolutionary. No successful assault can ever be made 
upon Webster's proposition that "in cases capable of assuming, 
and actually assuming, the character of a suit, the Supreme 
Court of the United States is the final interpreter." The status 
of a slave in Illinois, where slavery was prohibited by statute, 
and in Wisconsin, where slavery was prohibited by the Mis- 
souri Compromise, was an ideal question for solution in a suit, 
and in that form it was presented with all technical accuracy 
in the case of Dred Scott, so exhaustively argued. The author- Authority 
ity of every court of last resort rests necessarily upon the ofacoxirtof 

i^t resort* 

fundamental postulate that it alone is the judge of the scope 

of its jurisdiction, — its highest duty is to determine what 

questions are before it. In the words of Marshall, C. J., in 

Cohens v. Virginia,^ "It is most true that this Court will not 

take jurisdiction if it should not; but it is equally true that it 

must take jurisdiction if it should. . . . We have no more 

right to decline the exercise of jurisdiction which is given than 

to usurp that which is not given. The one or the other would 

be treason to the Constitution." It is not likely that any 

jurist familiar with the practice of the Supreme Court would 

have seriously contended, in times free from political excite- itsexdusive 

ment, that the constitutionality of the Missouri Compromise, ?^^^ to define 

. . . .. Its junsdiction, 

involvmg the entire status of slavery m the territories, was not 
squarely before that Court on the pleadings in the Dred Scott 

1 6 Wheat. 264. 



330 



THE AMERICAN CONSTITUTION 



[Ch. 



Lincoln's 

declaration, 

i8s8. 



Seward's 

" irrepressible 

conflict." 



Collision of 

unlawful 

forces. 



case. However that may be, the Court so held, and that 
decision was conclusive upon all persons bound to respect 
the Court's authority. 

The vital fact the judgment revealed was that the real dif- 
ficulty was imbedded in the Constitution itself, whose compro- 
mises upheld property in a slave in the territories as a matter 
of positive law. When the political leaders of the North were 
brought face to face with that result, let it be said to their 
honor that they made war directly upon the Constitution 
itself, — they did so by rejecting the exposition of the positive 
law as made by the Supreme Court within the scope of its 
authority. Their own declarations put that assertion beyond 
all controversy. In 1858, the year following the decision, 
Lincoln said: "This government cannot endure permanently 
half slave and half free. I do not expect the Union to be dis- 
solved ; I do not expect the house to fall ; but I do expect that it 
will cease to be divided. It will become all one thing or the 
other. Either the opponents of slavery will arrest the further 
spread of it, and place it where the public mind will rest in the 
belief that it is in the course of ultimate extinction; or its 
advocates will push it forward till it shall become alike lawful 
in all the states, old as well as new, north as well as south." 
Whatever doubt remained after that utterance it was re- 
moved completely by Seward's famous " irrepressible conflict" 
speech made at Rochester in the following October, in which 
he declared that the conflict in which the country was then 
engaged was not "accidental or unnecessary, the work of 
interested or fanatical agitators. It is an irrepressible conflict 
between opposing and enduring forces, and it means that the 
United States must and will, sooner or later, become either 
entirely a slaveholding nation, or entirely a free-labor nation." 
Seward's appeal to "the higher law" was a declaration that 
the Constitution of the United States, as construed by the 
Supreme Court, was no longer to be accepted as such. The 
higher law to which he referred was that consensus in favor 
of the abolition of slavery between the civilized nations which 
swept the institution out of existence in this country through 
civil war, despite the express guarantees given to the con- 
trary by the Constitution of the United States. In the Hght 
of these facts a jurist who sits in the "unvexed silence of a 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 331 

student's cell," undisturbed by passions that have passed 
away, should not now have the slightest difficulty in perceiv- 
ing that the revolt of those who refused to accept the judg- 
ment of the Supreme Court in the Dred Scott case was extra- 
constitutional, revolutionary; that the action of those who 
answered that revolt by an attempt to secede from the Union 
was extra-constitutional, revolutionary. The collision of those 
two irrepressible and unlawful forces precipitated the Civil 
War. 

Having now outlined the conflict that went on for sixty-one The conflict 
years in the political arena between the old provincial spirit 1^^^ ^ 
strengthened by slavery and the new national spirit strength- 
ened by intercommunication, a brief review must next be 
made of the same conflict as it appears in the judicial arena, 
with the courts as the arbitrating power. Just as Jefferson was 
the dominating mentality that directed the struggle carried 
on by the former in the political arena from 1798 down to the 
Civil War, so Marshall was the dominating mentality that Marshall as 
directed the struggle carried on by the latter in the judicial abominating 
arena, from 1801 down to the Civil War. Emphasis has been 
given already to the fact that a written constitution as a com- 
plete system of limitations upon the powers of a state to invade 
the "rights of man" is an invention that arose out of the poli- 
tics of the French Revolution ; that the right of a court to annul 
the act of a state, when in its judgment the Hmitations thus 
imposed have been exceeded, is purely an American invention, 
specially distinctive of our system of jurisprudence. That 
invention, originating in the state constitutions, was lifted 
into a higher sphere upon the creation of the Supreme Court 
of the United States, the first in history to claim or assert the 
right to pass upon the validity of a national law. The marvel 
is that neither in the state nor federal constitutions was this 
novel and far-reaching right bestowed by express constitu- 
tional grant; in both systems it emerged as a rule of judge- 
made law. Not until thirteen years after the organization of Right of a court 
the Supreme Court was the first attempt made, in the case| *° ^^^ ^ '*^' 
of Marbury v. Madison^ (1803), to put the stamp of nullity! 
upon a national law; and not until twenty years after its 
organization was the first attempt made, in the case of Fletcher 
V. Peck ^ (18 10), to put the stamp of nullity upon a state law, 
1 I Cranch, 138. » 6 Cranch, 87. 



332 THE AMERICAN CONSTITUTION [Ch. 

— in both instances by reason of repugnancy to the Federal 
Constitution. During the first eleven years of its existence the 
latent powers of the Supreme Court were in eclipse.^ At the 
end of that time it was that Jay, on January 2, 1801, after his 
reappointment as Chief Justice, wrote to President Adams: 
Jay's despair- " I left the bench perfectly convinced that under a system so 
ing cry. defective it would not obtain the energy, weight, and dignity 

which was essential to its affording due support to the national 
government; nor acquire the public confidence and respect 
which, as a last resort of the justice of the nation, it should 
possess. Hence, I am induced to doubt both the propriety and 
expediency of my returning to the bench under the present 
system." ^ 

That despairing cry with which Jay abandoned our federal 
judicial system as impotent was a bugle-call to John Marshall, 
who, on February 4, 1801, the day of the first meeting of the 
Court in the permanent capital of the nation, took his place 
for the first time as Chief Justice, and as such sat in the midst 
of six associates for thirty-four years. From a careful estimate 
of the amount of work done by the Court during that period. 
Scope of Mar- it appears that of eleven hundred and six opinions filed, 
five hundred and nineteen were delivered by Marshall, the 
remainder being equally divided among the fifteen who were 
from time to time his associates. Of the sixty-two decisions 
deUvered upon constitutional questions from 1801 to 1835, 
thirty-six were by Marshall, who filed but eight dissenting 
opinions, only one of which involved a question of con- 
stitutional law. He thus became not only the dominating 
mind of the Court, but its mouth-piece in a sense in which no 
Chief Justice has ever been, before or since. At the moment of 
his accession the time was ripe for the advent of a jurist and 
statesman clear-visioned enough to sweep the entire horizon 
of federal power, and bold enough to press each element of it 
to its logical conclusion. The ultimate success of his lifework 
was assured by the manner in which he solved the problem of 
problems that awaited him. In Marbury v. Madison (1803) 
the Supreme Court announced for the first time that it pos- 

* For the history of that period, * Pellew's Life of Jay, 339. 

see Taylor, Jur. and Pro. of the Su- 
preme Court of the U. S., v-ix. 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 333 

sessed the right, as well as the power, to declare null and void ^ | 
an Act of Congress in violation of the Constitution. The in- 
vincible logic employed in the demonstration rested necessarily 
on the admission that the august right in question was a mere 
deduction from the general nature of a system of government 
whose constitution did not undertake to grant it in express | 
terms. 

The prolonged duel at a later time between Webster and Supremacy of 
Calhoun was simply a continuation of the conflict that began ^^^^'^' '^^• 
when on February 4, 1801, Marshall took his place as Chief 
Justice, and Jefferson, on March 4, took his place as President 
of the United States. In their first encounter, which occurred 
in Marbury v. Madison, Jefferson was discomfited, because the 
Chief Justice, after holding that the proceeding against the 
Secretary of State must be dismissed for want of jurisdiction, 
coerced the President into delivering the commissions to the 
justices of the peace, whose issue he had countermanded, by a 
dictum in which the Court really had no right to indulge at all. 
In the next year the Court found occasion to remind the execu- 
tive power that certain of its acts were liable to be annulled 
by the judicial, when in Little v. Barreme^ (1804), a commander 
of a ship-of-war was held answerable to an injured person, 
even though he had acted under the instruction of the Pre- 
sident, as "instructions not warranted by law cannot legalize a 
trespass." In 1805, in the case of the United States v. Fisher,^ 
we find the Court, speaking through the Chief Justice, sustain- 
ing federal supremacy in cases of insolvency or bankruptcy. 
When the objection was made that such priority would "in- 
terfere with the right of the state sovereignties respecting the 
dignity of debts," the answer was that " the mischief suggested, 
so far as it can really happen, is the necessary consequence of 
the supremacy of the laws of the United States on all subjects 
to which the legislative power of Congress extends." When in 
1809 the state government of Pennsylvania went so far as to Pennsylvania 
order out the state militia to oppose the mandate of a federal <^o^''ced- 
court, Marshall was equal to the occasion. Olmstead, one of 
the captors of the sloop Active, whose rights under a decree 
entered by the Standing Committee of Appeals in cases of 
capture had been for a long time set at naught by the State of 
1 2 Cranch, 770. * 2 Cranch, 358. 



334 THE AMERICAN CONSTITUTION [Ch. 

Pennsylvania, now filed his libel in the District Court for that 
state. When Judge Peters refused to grant an attachment, 
after a decree in his favor, an application for a mandamus to 
be directed to the judge was made to the Supreme Court; and 
in granting it the Chief Justice said: "The State of Penn- 
sylvania can possess no constitutional right to resist the legal 
process which may be directed in this case. It will be readily 
conceived that the order which this Court is enjoined to make 
by the high obligations of duty and of law is not made without 
extreme regret at the necessity which has induced the appli- 
cation. But it is a solemn duty, and therefore must be per- 
formed." ^ More than this, the general of the state militia and 
some of his men, who were called out by the governor to resist 
the service of the attachment, were convicted for forcibly 
obstructing federal process. 

The supremacy of federal law was not, however, finally estab- 

Cohens v. Hshed until the more decisive judgment rendered in Cohens v. 

irguua. Virginia^ (i 82 1 ) , in which the Chief Justice said : "They main- 

tain that the Constitution of the United States has provided 
no tribunal for the final construction of itself, or of the laws or 
treaties of the nation; but that this power may be exercised 
in the last resort by the courts of every state in the Union. 
That the Constitution, laws, and treaties may receive as many 
constructions as there are states, and that this is not a mis- 
chief, or if a mischief, is irremediable." After putting to flight 
such chimerical contentions, the Court at a little later day 
asserted with equal force that within the circle of their exclus- 
ive jurisdictions the state courts, when construing the consti- 
tutions and legislative acts of their respective states, are 
equally supreme.^ When the original jurisdiction was invoked 

Cherokee Na- in the case of the Cherokee Nations. Georgia^ (i 831), an in- 
eorgia. jy^Q^joji ^^g asked to restrain the execution, in the territory 
of the Cherokee Nation, of certain laws of that state, the tribe 
claiming that, under the Constitution, they had the right to 
proceed as a foreign state. In denying that contention it was 
said that the Indian tribes residing within the acknowledged 
boundaries of the United States "may more correctly, perhaps, 

* United States v. Peters, 5 ' Bank of Hamilton v. Dudley, 2 
Cranch, 115. Pet. 492. 

* 6 Wheat. 265. « 5 Peters, i. 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 335 

be denominated domestic dependent nations." In Worcester v. 
Georgia^ (1832), a law of that state was held to be unconsti- Worcester 
tutional and void, under which a missionary had been con- "" ^^** 
victed of the crime of preaching to the Indians and residing 
among them without license from the governor. The State 
of Georgia met that decision with defiance, the governor de- 
claring that he would rather hang than liberate the missionary 
under the mandate of the Supreme Court. To compHcate the 
situation, President Jackson was not faithful to his duty. He 
is reported to have said: "John Marshall has made the de- 
cision, now let him execute it." It executed itself. At the end 
of eighteen months the contest of the weaker power against 
the national power had grown hopeless, and the prisoner was 
discharged. 

The most notable products of Marshall's unprecedented PeiatiahWeb- 
judicial career may be summed up under two heads. In the ttiTwaWor 
first place, he established the supremacy of federal law within Marshall. 
the entire circle of its jurisdiction, no matter whether it was 
opposed by the Congress or by a state legislature in the form 
of unconstitutional enactments, or by the President giving 
"instructions not warranted by law"; or by state supreme 
courts attempting to resist the mandates of the Supreme Court ; 
or by the governors of states attempting to resist such man- 
dates. And here it is hard not to note the marvel that in the 
first draft of the Constitution made by the great architect, 
February 16, 1783, he anticipated and defined the entire work 
of Marshall in this regard in four propositions, the first of 
which is that "no laws of any state whatever, which do not 
carry in them a force which extends to their effectual and final 
execution, can afford a certain or efficient security to the sub- 
ject: this is too plain to need any proof." ^ To that he added: 
"Further, I propose, that if the execution of any act or order 
of the supreme authority shall be opposed by force in any of 
the states (which God forbid) , it shall be lawful for Congress 
to send into such state a sufficient force to suppress it." 

While establishing the supremacy of federal law, Marshall "The nation" 
familiarized the people of this country with the fact that there ^g^c^ 
is "the nation," and "the American Constitution." In the Constitution." 

» 6 Peters, 515. 

* McCuIloch V. Maryland, 4 Wheat. 316. 



336 



THE AMERICAN CONSTITUTION 



[Ch. 



Marshall's de- 
finition abides. 



Dartmouth 
College case 
limited by 
Taney. 



second place, in defining the character of "the American Con- 
stitution, " a favorite phrase, he was careful to explain that it 
was something entirely different from the loose league em- 
bodied in the Articles of Confederation. In a great case he 
said: "To the formation of a league, such as was the Confed- 
eration, the state sovereignties were certainly competent. But 
when 'in order to form a more perfect Union,' it was deemed 
necessary to change this alliance into an effective government, 
possessing great and sovereign powers, and acting directly on 
the people, the necessity of referring it to the people, and of 
deriving its powers directly from them, was felt and acknow- 
ledged by all. The government of the Union, then (whatever 
may be the influence of this fact on the case), is emphatic- 
ally and truly a government of the people. In form and 
in substance it emanates from them." ^ Here we have a sol- 
emn declaration that the American Constitution is not a 
mere compact between states, dissoluble at pleasure, but an 
instrument of perpetual efficacy, emanating from the whole 
people, and construable by the judicial power, capable of en- 
forcing its mandates, within the limits of its jurisdictions, 
against all opposing forces, legislative or executive. That 
conception of a constitution is purely an American creation ; 
it has no prototype in history. It was that conception which, 
in the complete and scientific form given it by Marshall, 
crushed and drove out the French conception of a constitu- 
tion as "a compact," without the judicial power as a factor 
in its construction, embodied by Jefferson in the Kentucky 
and Virginia Resolutions of 1798. The conception of a con- 
stitution as defined by Marshall and elaborated by his 
disciple, Daniel Webster, abides; the conception of a consti- 
tution as defined by Jefferson and elaborated by his disciple, 
Calhoun, has passed away. 

Roger B. Taney, who succeeded Marshall, served as Chief 
Justice from March 15, 1836, to October 12, 1864. The first 
opinion delivered by him on a constitutional question (Charles 
River Bridge v. Warren Bridge ^) limited the far-reaching 
principle announced in the Dartmouth College case, by assert- 
ing the broad and wholesome doctrine that public grants are to 

1 McCullcch p. Maryland, 4 Wheat. 316. 

2 1 1 Peters, 420. 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 337 

be construed strictly; unless there is an express grant of an 
exclusive privilege, an implied contract to that effect is not to 
be inferred. With the prescience of a statesman he said: "Let 
it once be understood that such charters carry with them these 
implied contracts, and give this unknown and undefined pro- 
perty in a line of travel, and you will soon find the old turnpike 
corporations awakening from their sleep, and calling upon this 
court to put down the improvements which have taken their 
place." During this epoch it was that a revolution was wrought 
in the commerce of the country through a transition from the 
primitive and ineffectual means of transportation by pack- 
horse and wagon to the new methods, resulting from the 
application of steam to locomotive on land as well as on 
water. One of the earliest results of the change was a substi- 
tution for the ancient English rule of admiralty and maritime 
jurisdiction, resting on the ebb and flow of the tide, of a new 
one better adapted to totally different physical conditions. 
In the case of the Genesee Chief v. Fitzhugh ^ (1851), the 
Court declared in no uncertain terms that the admiralty juris- Admiralty 
diction of the District Court extends not only beyond the flow j^f^gj" 
of the tide in all navigable waters, but even over the great 
fresh- water lakes. The Chief Justice said: "These lakes are, 
in truth, inland seas. Different states border on them on one 
side, and a foreign nation on the other. A great and growing 
commerce is carried on upon them between different states 
and a foreign nation, which is subject to all the accidents and 
hazards that attend commerce on the ocean." Thus by a 
stroke of the judicial pen the admiralty jurisdiction of the 
federal courts was extended over vast areas of navigable water 
from which it had been excluded for sixty years by the ancient 
English rule fixing the ebb and flow of the tide instead of the 
navigable character of the water as the test of jurisdiction. 

Six years later, Taney reached the crisis of his career when Certain ques- 
he was called upon to preside in the famous Dred Scott case, Jus^^Slie.^' 
in which was witnessed the failure of the attempt to settle 
by the judgment of a court of the highest dignity a question, 
in one aspect purely judicial, in another intensely poHtical. 
The civilized world is now striving to establish some kind of 
an international tribunal which will be able to diminish if not 
^ 12 Howard, 443. 



338 



THE AMERICAN CONSTITUTION 



[Ch. 



Attempted 
secession of 
the Southern 
States. 



A perfect de 
facto govern- 
ment. 



Character 
of contest 
defined by 
Supreme 
Court. 



prevent wars by being armed through treaties with a jurisdic- 
tion over a certain class of delicate political questions hereto- 
fore regarded as not justiciable. The result in the Dred Scott 
case does not stimulate hope as to such experiments. The 
world has yet to be educated up to the idea that a certain class 
of supreme questions, whether national or international, are 
justiciable. 

The states that attempted to secede proceeded with all the 
technical exactness the theories of Calhoun prescribed. The or- 
dinance adopted by the Convention of South Carolina, Decem- 
ber 20, i860, declared: "We, the people of the State of South 
Carolina, in convention assembled, do declare and ordain, and 
it is hereby declared and ordained, that the ordinance adopted 
by us in convention on the 23d day of May, in the year of our 
Lord 1788, whereby the Constitution of the United States was 
ratified, and also all acts and parts of acts of the General As- 
sembly of this state ratifying amendments of the said Consti- 
tution, are hereby repealed; and that the Union now subsisting 
between South Carolina and other states, under the name of 
the United States, is hereby dissolved." Similar ordinances were 
passed by conventions in Mississippi, January 9, 1861 ; Florida, 
January 10; Alabama, January 11; Georgia, January 19; Louis- 
iana, January 26 ; and Texas, February i . These seven were the 
original seceding states; afterward joined by Arkansas, May 6; 
North Carolina, May 20; Virginia, May 23; and Tennessee, 
June 18. No more perfect de facto government was ever formed 
than that known as the " ConfederateStatesof America," whose 
constitution was a reproduction, with minor variations, of that 
of the United States. The new confederacy occupied a large 
area of territory ; it maintained great armies in the field ; and a 
small but terribly efficient navy. The Alabama, which wrought 
such destruction, was a ship-of-war commanded by a duly 
commissioned admiral, and not a privateer. It was therefore 
inevitable that the Supreme Court of the United States should 
hold that such a gigantic and prolonged contest carried on 
between two perfectly organized governments was not a 
rebellion, but a civil war in the highest sense of that term. It 
was so held in the Prize Cases ^ (1862), in which Mr. Justice 
Grier, speaking for the Court, said: " The greatest of civil wars 

1 2 Black, 635. 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 339 

was not gradually developed by popular commotion, tumult- 
uous assemblies, or local unorganized insurrections. However 
long may have been its previous conception, it nevertheless 
sprung forth suddenly from the parent brain, a Minerva in 
the full panoply of war." Was there a war? Could there be 
a prize? — were questions which necessarily arose out of Pre- 
sident Lincoln's proclamations of April 19 and 27, 1861, the 
blockade of the Southern ports, and the capture on the high 
seas of ships carrying contraband goods, or of ships owned by 
citizens of the states in revolt. It was directly adjudicated 
that the President possessed the right, jure belli, to institute 
a blockade of the ports in possession of the states in revolt, 
which neutrals were bound to respect. Then, after referring 
to the neutrality proclamations issued by Great Britain and 
other powers, the Court further said: "After such an official 
recognition by the sovereign, a citizen of a foreign state is 
estopped to deny the existence of the war, with all its con- 
sequences as to neutrals." When Chief Justice Taney, who 
was so indisposed as to be unable to sit during 1863, died in 
October, 1864, he was succeeded by Salmon P. Chase, who Chase 
was commissioned as his successor December 6 of that year, ^^^ Justice, 

December 0, 

after an absence from the bar of fifteen years. He arrived in 1864. 
time to pass upon all of the questions of international law or of 
prize growing out of the Civil War. In the first opinion deliv- 
ered by him (The Circassian 0, the rule of international law 
was announced that a vessel sailing from a neutral port with 
intent to violate a blockade is prize from the time of sailing, 
liable to capture and condemnation, and that the evidence 
of intent may be gathered, not only from letters and papers, 
but from the words and acts of the owners or hirers of the 
vessel, the shippers of the cargo and their agent, and especially 
from spoliation of papers on the eve of capture. 

But all such performances sink into insignificance when we 
contemplate the famous judgment in which the character of 
the Constitution was authoritatively defined after its temper 
had been tested in the fierce crucible of Civil War. In Texas v. Texas v. White, 
White ^ the vital question was this: By the ordinance of seces- ^ 
sion, adopted by the convention and ratified by a majority 
of the citizens of Texas, and the acts of its legislature intended 
1 2 Wallace, .135. ' 7 Wallace, 700. 



340 THE AMERICAN CONSTITUTION [Ch. 

to give effect to that ordinance, did that state cease to be a 
state in the Union? Did its citizens cease to be citizens of the 
Union? In other words, is the Federal Constitution such "an 
instrument of perpetual efficacy, emanating from the whole 
people," as to be indissoluble by any state even when it 
attempts to break the bond by the act of a constitutional con- 
vention, ratified by a majority of its citizens? The Court, 
speaking through the deathless words of the Chief Justice, 
thus answered: "The Union of the states never was a purely 
artificial and arbitrary relation. It began among the colonies, 
and grew out of common origin, mutual sympathies, kindred 
principles, similar interests, and geographical relations. It 
was confirmed and strengthened by the necessities of war, and 
received definite form and character and sanction from the 
An indestruct- Articles of Confederation. By these the Union was solemnly 
fined?"°'^ ^ declared to be perpetual ! and when these Articles were found 
to be inadequate to the exigencies of the country, the Constitu- 
tion was ordained 'to form a more perfect Union.' It is diffi- 
cult to convey the idea of indissoluble union more clearly than 
by these words. What can be indissoluble if a perpetual union 
made more perfect is not? But the perpetuity and indissolu- 
biHty of the Union by no means implies the loss of distinct 
and individual existence, or of the right of self-government 
by the states. . . . The Constitution, in all its provisions, 
looks to an indestructible union, composed of indestructible 
states." Thus after a struggle of seventy-one years was cast 
out once and forever from our constitutional system the danger- 
ous and entirely illogical heresy embodied in the Virginia 
Resolutions of 1798, which declared "that in case of deliberate, 
palpable, and dangerous exercise of other powers, not granted 
by said compact, the states, which are parties thereto, have 
the right, and are in duty bound, to interpose, for arresting 
the progress of the evil, and for maintaining, within their 
respective limits, the authorities, rights, and liberties apper- 
taining to them." The true nature of " the American Constitu- 
tion" — defined by Chief Justice Marshall to be "an effective 
government, possessing great and sovereign powers, and acting 
directly on the people, . . . and deriving its powers directly 
from them. ... In form and in substance it emanates from 
them " — was frankly and fully recognized by Chief Justice 



new national 
life. 



X.] SIXTY-ONE YEARS OF CONSTITUTIONAL GROWTH 341 

Chase, who, in the epoch-making judgment in question, re- 
stated Marshall's conception in such a way as to make it the 
irrevocable basis of our new national life. That basis has been Basis of our 
accepted by the nation as a whole, regardless of section or 
party, — not because it is the ipse dixit of a court, but because 
it is inherently sound and just. And yet the fact remains that 
this dominating conception of the Constitution is the outcome 
of the process through which a straggling series of republics, 
fringing our Atlantic seaboard towards the close of the eight- 
eenth century, with a dim sense of union, have been rapidly 
transformed, through intercommunication, into a nation. It 
did not exist at the outset. And so this long chapter must end 
as it began with Savigny's declaration that the law of each 
country, pubHc and private, must be regarded "as a member 
of its body, not as a garment merely, which has been made 
to please the fancy, and can be taken off at pleasure and 
exchanged for another." Law is the natural outcome of the 
consciousness of the people, like their social habits or their 
language. "We find in language a constant formation and 
development, and in the same way in law." Or, in the 
words of Sir James Mackintosh, "constitutions are not made, 
they grow." 



CHAPTER XI 



THE CIVIL WAR AMENDMENTS 



North without 
a programme. 



Civil war From what has now been said it clearly appears that the 

precipitated. question of slavery — after profoundly agitating and divid- 
ing this country politically, socially, and religiously, for more 
than seventy years — suddenly precipitated civil war. In 
the graphic language of the Supreme Court of the United 
States, "This greatest of civil wars was not gradually devel- 
oped. . . . However long may have been its previous con- 
ception, it nevertheless sprung forth suddenly from the parent 
brain, a Minerva in the full panoply of war."^ It is not 
therefore strange that a gigantic upheaval so suddenly pre- 
cipitated should have found the North entirely unprepared 
with a programme, prearranging the manner in which its armies 
in the field should deal with slavery as the war advanced, the 
final disposition that should be made of the millions of freed- 
men suddenly transformed from chattels into persons, and the 
manner in which the seceding states should be restored to their 
normal status in the Union. Tentatively, and bit by bit, a 
policy was evolved and executed, embracing all of these sub- 
jects, that in a large measure followed events and the dominant 
currents of public opinion in the North born of those events. 
The entire movement which occupied many years is generally 
Reconstruction described by the term Reconstruction, which embraces, first, 
the process by which the slaves were emancipated and then 
elevated to the status of full citizens; second, the process by 
which the seceding states, with such citizens added to the 
corporate person of each, were restored to their normal places 
in the Union. With that large section of our political history 
labeled Reconstruction no attempt will be made to deal here.* 



defined. 



* Mr. Justice Grier in The Prize 
Cases, 2 Black, 635 (1862). 

* I refer with great pleasure to 
the authoritative work, Reconstruc- 
tion by Eye-Witnesses (1890), the 
chief contributor to which is my 
distinguished friend, the Hon. Hilary 



A. Herbert, who as jurist, soldier, 
member of Congress, and Secretary 
of the Navy, has made a record that 
is an honor at once to the South 
and to the Nation. He was one of 
President Cleveland's most trusted 
counselors. 



XL] THE CIVIL WAR AMENDMENTS 343 

Only that part of it will be touched which falls strictly within 
the domain of constitutional history, embracing the organic 
changes wrought by the Thirteenth, Fourteenth, and Fifteenth 
Amendments. As these three amendments all relate to a sin- Unity of the 
gle subject-matter, which they disposed of progressively, they ^eats^™^°*^' 
should be regarded as a single event, — as a single amendment 
to the Constitution. If they may be thus viewed, then the Con- 
stitution has been amended, in the manner in which its terms 
prescribe, only once in one hundred and six years, and then as 
the result of civil war. As each of the three amendments in 
question disposed of a distinct phase of the subject, each will 
be considered separately in the order of its ratification. 

The history of the Thirteenth Amendment really begins with Thirteenth 
this declaration made by Congress in July, 1 861: "That this Amendment, 
war is not prosecuted on our part in any spirit of oppression, 
nor for any purpose of conquest or subjugation, nor for the pur- 
pose of overthrowing or interfering with the rights or estab- 
lished institutions of those states, but to defend and maintain 
the supremacy of the Constitution and all laws made in 
pursuance thereof, and to preserve the Union with all the 
dignity, equality, and rights of the several states unimpaired ; 
that as soon as these subjects are accomplished, the war ought 
to cease." In harmony with that declaration the President 
promptly disavowed the act of General Fremont, in Missouri, 
August 30, 1 86 1, and that of General Hunter, in South Caro- 
lina, May 9, 1862, when they issued proclamations attempting 
to abolish slavery. But a marked change of feeling and of 
policy was manifested when in June and July of that year slavery in 

slavery in the territories was abolished by acts that also freed tfrritories 
1 t 1 1 r • • . r ,, , abohshed, 1861. 

the captured, deserted, or fugitive slaves of all owners engaged 
in the Civil War, and authorized the employment of negro sol- 
diers. By an act passed August 6, 1861, all claim of the mas- 
ter to the services of slaves employed in arms or labor against 
the Government had been forfeited ; and by an additional arti- 
cle of war of March 13, 1862, the army was prohibited from 
returning fugitive slaves. The fugitive slave laws were not 
finally abolished, however, until June 28, 1864. The President's 
policy of emancipation with compensation was clearly indi- 
cated in his special message of March 6, 1862, in accordance 
with which the joint resolution of April 10 was passed, declar- 



344 



THE AMERICAN CONSTITUTION 



[Ch. 



Slavery in 
District of 
Columbia, 
abolished, 
1862. 



Emancipation 

Proclamation, 

1863; 

its legal effect; 



exemptions 
from its oper- 
ation. 



Slavery must 
be supported 
by local police; 



ing that the United States ought to cooperate with any state 
willing to adopt gradual "abolishment," upon the basis of com- 
pensation. On that basis was passed the Act of April 16, 1862, 
abolishing slavery in the District of Columbia. Not until after 
the border states had closed their ears to President Lincoln's 
generous advances in that direction did he yield to the de- 
mand of the anti-slavery forces of the North and issue his pre- 
liminary proclamation of September 22, of the year last named, 
which was followed by the famous Emancipation Proclama- 
tion of January i, 1863. 

It is really impossible to attribute any legal effect to that 
proclamation, even as an exercise of the despotic war power 
in conquered territory, by reason of the peculiar terms in which 
it was drawn. Strangely enough, instead of providing for con- 
ditions within the conquered areas wherein the war power 
was in actual force, it undertook to free slaves, not on the 
soil then under military occupation, but on that not then 
occupied, therefore beyond the jurisdiction of the President 
as "commander-in-chief." The portions of Louisiana and Vir- 
ginia actually conquered by the armies of the United States, 
and subject to military occupation at the time, were expressly 
exempted from the operation of the proclamation. When 
Douglas was attempting at Freeport in August, 1858, the im- 
possible task of reconciling his doctrine of popular sovereignty 
with loyal support of the judgment in the Dred Scott case, 
Lincoln asked him this question : "Can the people of a territory, 
in any lawful way, against the wish of any citizen of the United 
States, exclude slavery from its limits prior to the formation of 
a state constitution? " Douglas developed a vitally important 
point when he answered: "The people have the lawful means 
to introduce it or exclude it as they please, for the reason 
that slavery cannot exist a day or an hour anywhere unless 
it is supported by local police regulations." Upon that ground 
Mansfield released Sommersett, — there were no "local police 
regulations" in England, or in other words no positive law by 
which the master's possession could be enforced. The Duke of 
Wellington, in defining the nature and extent of the authority 
of a military occupant and his duty to govern, said: "Martial 
law is neither more nor less than the will of the general who 
commands the army. In fact martial law means no law at all ; 



XL] THE CIVIL WAR AMENDMENTS 345 

therefore the general who declares martial law, and commands 
that it shall be carried into execution, is bound to lay down dis- 
tinctly the rules and regulations and limits according to which 
his will is carried out. Now, I have in another country carried 
out martial law ; that is to say, I have governed a large propor- 
tion of a country by my own will. But then, what did I do? I 
declared that the country should be governed according to its 
own national law ; and I carried into execution that my so de- 
clared will."^ Thus it is clear that a commander in military Slavery 
occupation can either continue the existence of slavery by up- ^^^^ or abol- 
holding the local laws by which it is sanctioned ; or he can abol- ished by mil- 
ish it, for the time being, by the suspension of those laws. In ^*^^ occupant; 
either event his power to deal with the subject-matter is neces- 
sarily limited to the district in which he has actual military au- 
thority, and to the time during which such authority continues. 
The moment the peculiar status established by the military 
occupation ends, all the incidents growing out of it end with it. 
Thus no instant operation can be attributed to the proclama- 
tion in question, even as a war measure, as to those portions of 
the Southern States not in the actual military occupation of the 
Union forces on January i, 1863. As to the parts of Virginia 
and Louisiana actually conquered, it declared that they were, 
"for the present, left precisely as if this proclamation were not 
issued"; as to the parts unconquered it declared "that all per- 
sons held as slaves within the said states and parts of states are 
and henceforth shall be free; and that the Executive Govern- 
ment of the United States, including the military and naval 
authorities thereof, will recognize and maintain the freedom 
of said persons." It may be that that part of the proclamation 
went into effect, as a war measure, progressively as the desig- 
nated parts were conquered, and thus subjected to actual mili- 
tary occupation. But even then it is impossible that slavery 
could have been thus abolished by the proclamation in any 
constitutional sense. Congress and the President were equally 
impotent to overturn the compromises of the Constitution up- 
holding the institution of slavery as their effect had been de- ^g^gj, ^^jqI. 
fined by the Supreme Court in the Dred Scott case. Therefore ished until 
it is certain that slavery was never abolished, in a constitutional thirteenth ° 
sense, until the ratification on December 18, 1865, of the Thir- Amendment. 
^ Hansard, 3d series, cxv, 881 ; Taylor, Int. Pub. Law, 596 53. 



346 



THE AMERICAN CONSTITUTION 



[Ch. 



Liberation 
of master 
and slave. 



Mason's 
declaration. 



teenth Amendment declaring that "neither slavery nor invol- 
untary servitude, except as a punishment for crime whereof 
the party shall have been duly convicted, shall exist within the 
United States, or any place subject to their jurisdiction." 
That view is confirmed by the judgment of the Supreme Court 
in Osborn v. Nicholson,^ in which it was held that the consti- 
tution of Arkansas of 1868, which annuls all contracts for the 
purchase or sale of slaves, and declares that no court of 
the state should take cognizance of any suit founded on such 
a contract, is invalid as to all prior transactions ; that it is no 
defense to an action for the price of a slave, sold when slavery 
existed, that the seller warranted him to be a slave for life, 
and that such warranty was broken by the subsequent consti- 
tutional abolishment of slavery. And to the same effect is 
White V. Hart.- In the Civil Rights cases, ^ it was held that 
the Thirteenth Amendment relates only to slavery and invol- 
untary servitude, which it abolishes ; and in Plessy v. Fergu- 
son,* it was held that the amendment in question, abolish- 
ing slavery and involuntary servitude, was not violated by 
a state statute requiring separate accommodations for white 
and colored persons on railroads. 

No act of legislation in the world's history has been accepted 
and approved with more unanimity by all classes and condi- 
tions of men affected by it than that by which slavery was abol- 
ished in the United States. The reason for that unanimity is to 
be found in the fact that the constitutional act of abolition 
liberated at the same moment the master and the slave. By 
the Thirteenth Amendment the white people of the South were 
emancipated from a deadly institution. In the light of sub- 
sequent events they now realize that, entirely apart from its 
other drawbacks, slavery was the greatest of all obstacles in 
the path of their economic development. With a territory teem- 
ing with mineral wealth, and with a climate peculiarly suited 
to manufactures, the South was for seventy years chained by 
the institution of slavery to agriculture alone. In the Federal 
Convention of 1787 George Mason of Virginia said: "Slavery 
discourages arts and manufactures. The poor despise labor 
when performed by slaves. They prevent the emigration of 



» 13 Wall. 654. 
* 13 Wall. 646. 



» 109 U. S. 3. 
* 163 U. S. 537. 



XL] THE CIVIL WAR AMENDMENTS 347 

whites who really enrich and strengthen a country." * Slave 
labor in the South, absorbed as it was in the rude work required 
for the production of cotton, tobacco, and sugar, was incapable 
of advance or development, while its presence excluded the 
influx of laborers who were. The results of the economic revo- 
lution wrought in the South by the abolition of slavery may be 
very briefly and vividly summed up. When the entire output of South's 
the South's productions for i860 are arranged in two columns, advance m 

, , production. 

that embracing farm products, with cotton included, represents 
practically everything, while that embracing the products of 
manufactures and mining represents practically nothing. To- 
day the mining and manufacturing products of the South 
exceed her entire agricultural output, including cotton. Of that 
great staple she is producing vastly more than in i860, with the 
aid of her negro population in which not one penny of capital is 
invested. In the days of slavery the South deluded herself with 
the fancy that she was rich because of the hundreds of millions 
invested in the flesh and blood of her peasantry. The fallacy of 
that economic illusion is now apparent when with her capital 
invested in other and normal directions her peasantry is more 
productive as free men. 

The general abolition of slavery, universal in the ancient A legal person 
world, represented one of the occasional breaks in the continu- ^^P°sed to 
ity of the history of law, the effect of which has been to clear 
the conception of a legal person as opposed to a thing from all 
the ambiguities attaching to that conception so long as human 
beings were treated to a greater or less extent as if they were 
chattels. In early law the right of a master over his slaves was 
of precisely the same extent and character as that which he had 
over his cattle, except that the slave was capable of manumis- 
sion. ^ In Roman law the manumitted were called freedmen, 
who were subject to political disabilities, and to some duties 
arising from the peculiar laws of patronage. In the history of 
that system a large chapter is occupied by the disabilities 
of "libertini" and their duty toward their "patroni." ^ By the 

^ Gouverneur Morris said: "It is ance of slavery." 

the curse of Heaven on the States * Cf . Taylor, The Science of JuriS' 

where it prevailed. Travel through prudence, 559. 

the whole continent and] you behold ' The improved position in Jus- 

the prospect continually varying tinian law is manifested by the 

with the appearance and disappear- declaration that "slavery is con- 



348 



THE AMERICAN CONSTITUTION 



ICh. 



Fourteenth 
Amendment. 



An Achaian 
citizen. 



Articles of 
Confederation. 



Thirteenth Amendment slaves as chattels were converted 
into freedmen (liberiini) ; and then, without any intermediate 
probation, they were lifted to the status of full citizens in the 
American sense of that term, which carries with it the enjoy- 
ment of political rights. 

The Constitution of the United States never reached its 
logical completion until after the adoption of the Fourteenth 
Amendment. As heretofore pointed out, the essence of the in- 
vention of Pelatiah Webster, which became the cornerstone of 
the existing Constitution, and which imparted to it its distinct- 
ive character, was embodied in the fact that its powers oper- 
ate not upon states in their corporate capacity but directly on 
individuals as such. If that basic principle had been from the 
outset carried to its logical conclusion, it would have been 
settled from the beginning that the individuals upon whom the 
new and unique federal system acts are primarily its own citi- 
zens. Even in such a federal system as the Achaian League, 
"every Achaian citizen stood in a direct relation to the federal 
authority, and was in full strictness a citizen of the league 
itself, and not merely of one of the cities which composed it." ^ 
And yet at the time of the adoption of the present Constitution 
the sense of nationality had not sufficiently developed to per- 
mit the statement of the ultimate and inevitable conclusion, 
that every citizen of the Union is primarily a citizen of the 
United States, and not merely of one of the states which com- 
pose them. The one particular in which our first Federal Con- 
stitution rose above the older Teutonic leagues, after which it 
was patterned, was embodied in the new principle of interstate 
citizenship it originated. That principle infused itself neither 
into the constitution of the old German Empire, nor of Switz- 
erland, nor of Holland.^ Section i of Article iv of the Arti- 
cles of Confederation provided that "the better to secure and 
perpetuate mutual friendship and intercourse among the 
people of different states in this Union, the free inhabitants of 
each of these states, paupers, vagabonds, and fugitives from 



trary to the law of nature; as accord- 
ing to natural law, all men were from 
the first born free." Just. 1. 2.2. The 
doctrine that slavery is against 
nature, was older than Aristotle, 
who does not accept it. See W. L. 



Newman's Politics of Aristotte, In- 
trod., 141. 

^ Freeman, Federal Government, i, 

259- 

* Bancroft, History of the Constitu- 
tion, i, 118. 



XL] THE CIVIL WAR AMENDMENTS 349 

justice excepted, shall be entitled to all privileges and immuni- 
ties of free citizens in the several states. ' ' The substance of that 
provision was reproduced in Section 2 of Article iv of the 
present Constitution, which provides that "the citizens of each 
state shall be entitled to all privileges and immunities of citi- 
zens in the several states." Beyond that point the framers of 
the more perfect union were not prepared to go. They did not 
attempt to do more than establish an interstate citizenship. No primary 
to which they imparted the qualities of uniformity and equal- p^or to F^ur- 
ity by denying to every state the right to discriminate in favor teenth Amend- 
of its own citizens as against those of any other state. In the ™^^*' 
absence of any positive assertion by federal authority of any 
such thing as a primary citizenship of the United States as such, 
there was really no substantial basis upon which to maintain 
its existence. The better view is that prior to the adoption of 
the Fourteenth Amendment a man was a citizen of the United 
States only by virtue of his citizenship in one of the states com- 
posing the Union. If any such thing as a federal or national 
citizenship then existed at all, it was nothing more than a sec- 
ondary and dependent relation. 

In the case of Dred Scott a grand inquest was held with all Inquest in 
the machinery of learning, and with all the accessories of pro- 
longed and exhaustive argument, in order to ascertain whether 
or no such a thing existed as citizenship of the United States, 
defined as such by its Constitution and laws, independent of 
state citizenship. The most earnest seeker for such a citizen- 
ship was Mr. Justice Curtis, who was in the highest degree 
qualified to ascertain it, if it existed at all. His return was non 
est inventus. He ascertained that there was no such thing, at 
that time, as a citizenship of the United States, as a substan- 
tive thing independent of state citizenship. He said: "I can Justice Cur- 
find nothing in the Constitution, which, propno vtgore, deprives 
of their citizenship any class of persons who were citizens of the 
United States at the time of its adoption, or who should be na- 
tive-born citizens of any state after its adoption ; nor any power 
enabling Congress to disfranchise persons born on the soil of 
any state, and entitled to citizenship of such state by its con- 
stitution and laws. And my opinion is that, under the Con- 
stitution of the United States, every free person born on the 
soil of a state, who is a citizen of that state by force of its con- 



Dred Scott 
case. 



350 



THE AMERICAN CONSTITUTION 



[Ch. 



Solecism in 
original Con- 
stitution. 



Section i, 

Fourteenth 

Amendment. 



Slaughter- 
House cases. 



stitution or laws, is also a citizen of the United States. . . .That 
the Constitution itself has defined citizenship of the United 
States by declaring what persons, born within the several 
states, shall or shall not be citizens of the United States, will 
not be pretended. It contains no such declaration." ^ He per- 
suaded himself that Sandford's plea to the jurisdiction was bad, 
and that Scott had the right to sue because "every such citi- 
zen, residing in any state, has the right to sue, and is liable to 
be sued in the federal courts, as a citizen of that state in which 
he resides." And so, after conceding all that Mr. Justice Cur- 
tis claimed, it appears that such citizenship of the United States 
as Scott was supposed to possess was nothing more than a sec- 
ondary and dependent relation resulting from his state citi- 
zenship. Such was the solecism existing in the Constitution at 
the time of its adoption. While it created the first federal 
government that ever operated directly on citizens, the fact 
remained that it had no citizens in its own right. To fill that 
vacuum was adopted the first section of the Fourteenth Amend- 
ment, which, without making any direct reference to the ques- 
tion of race at all, contains the first positive definition ever 
given of citizenship of the United States as a primary and sub- 
stantive thing, independent of state citizenship. It provides 
that, "All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of the 
United States and of the state wherein they reside. No state 
shall make or enforce any law which shall abridge the privi- 
leges or immunities of citizens of the United States ; nor shall 
any state deprive any person of life, liberty, or property, with- 
out due process of law; nor deny to any person within its 
jurisdiction the equal protection of the laws." 

The sequel of the Dred Scott case is to be found in the 
Slaughter-House cases ^ (1872), in which another grand in- 
quest was held in order to ascertain the nature of the new citi- 
zenship brought into existence by the section in question. The 
case for the plaintiffs in error was presented in a far-reaching 
argument by the Honorable John A. Campbell, who had sat as 
one of the Justices in the Dred Scott case. The Court, speaking 
through Mr. Justice Miller, declared: (i) "The first section of 

^ Dred Scott v. Sandford, 19 Howard, 575. 
» 16 Wallace, 36. 



XL] THE CIVIL WAR AMENDMENTS 351 

the Fourteenth Article, to which our attention is more specially 
invited, opens with a definition of citizenship — not only citi- 
zenship of the United States, but citizenship of the states. No Citizenship not 
such definition was previously found in the Constitution, nor 5^^°^^^ 
had any attempt been made to define it by Act of Congress. It 
had been the occasion of much discussion in the courts, by the 
executive departments and in the public journals. It had been 
said by eminent judges that no man was a citizen of the United 
States, except as he was a citizen of one of the states compos- 
ing the Union. Those, therefore, who had been born and re- 
sided always in the District of Columbia or in the territories, 
though within the United States, were not citizens. Whether 
this proposition was sound or not, had never been judicially 
decided. But it had been held by this Court, in the celebrated 
Dred Scott case, only a few years before the outbreak of the 
Civil War, that a man of African descent, whether a slave or 
not, was not and could not be a citizen of a state or of the 
United States. This decision, while it met with the con- 
demnation of some of the ablest statesmen and constitutional 
lawyers of the country, had never been overruled ; and if it was 
to be accepted as a constitutional limitation of the right of 
citizenship, then all the negro race who had recently been made 
freemen were still, not only not citizens, but were incapable of 
becoming so by anything short of an amendment to the Consti- 
tution" ; (2) "it [Section i of Article xiv] declares that persons 
may be citizens of the United States without regard to their 
citizenship in a particular state, and it overturns the Dred Scott Dred Scott 
decision by making all persons born within the United States ^^^' 
and subject to its jurisdiction citizens of the United States. 
That its main purpose was to establish the citizenship of the 
negro can admit of no doubt"; (3) "the distinction between 
citizenship of the United States and citizenship of a state 
is clearly recognized and established. Not only may a man 
be a citizen of the United States without being a citizen of 
a state, but an important element is necessary to convert the 
former into the latter. He must reside within the state to 
make him a citizen of it, but it is only necessary that he should 
be born or naturalized in the United States to be a citizen of 
the Union"; (4) "there is a citizenship of the United States 
and a citizenship of a state, which are distinct from each other, 



352 



THE AMERICAN CONSTITUTION 



[Ch. 



What priv- 
ileges the 
nation must 
protect. 



What priv- 
ileges states 
must protect. 



Certain rights 
of national 
citizenship. 



and which depend upon different characteristics or circum- 
stances in the individual"; (5) "privileges and immunities of 
the citizens of the United States . . . are placed by this clause 
under the protection of the Federal Constitution, and that the 
latter, whatever they may be, are not intended to have any 
additional protection by this paragraph of the Amendment. If 
then there is a difference between the privileges and immun- 
ities belonging to a citizen of the United States as such, the 
latter must rest for their security and protection where they 
have heretofore rested, for they are not embraced in this 
paragraph of the Amendment"; (6) "having shown that the 
privileges and immunities relied on in the argument are those 
which belong to citizens of the states as such, and that they 
are left to the state governments for security and protection, 
and not by this article placed under the special care of the Fed- 
eral Government, we may hold ourselves excused from defining 
the privileges and immunities of citizens of the United States 
which no state can abridge, until some case involving these 
privileges and immunities may make it necessary to do so. But 
lest it should be said that no such privileges and immunities 
are to be found if those we have been considering are ex- 
cluded, we venture to suggest some which owe their existence 
to the Federal Government, its national character, its Con- 
stitution, or its laws. One of these is well described in the 
case of Crandall v. Nevada, 6 Wall. 36. It is said to be the right 
of the citizen of this great country, protected by implied guar- 
anties of its Constitution, ' to come to the seat of government 
to assert any claim he may have upon that government, to 
transact any business he may have with it, to seek its protec- 
tion, to share its offices, to engage in administering its func- 
tions. He has the right to free access to its seaports, through 
which all operations of foreign commerce are conducted, to the 
subtreasuries, land offices, and courts of justice in the several 
states. . . . Another privilege of a citizen of the United States 
is to demand the care and protection of the Federal Govern- 
ment over his life, liberty, and property when on the high seas 
or within the jurisdiction of a foreign government. Of this 
there can be no doubt, nor that the right depends upon his char- 
acter as a citizen of the United States. The right to peaceably 
assemble and petition for redress of grievances, the privileges 



XL] THE CIVIL WAR AMENDMENTS 353 

of the writ of habeas corpus, are rights of the citizen guar- 
anteed by the Federal Constitution. The right to use the 
navigable waters of the United States, however they may pene- 
trate the territory of the several states, and all rights secured 
to our citizens by treaties with foreign nations, are dependent 
upon citizenship of the United States, and not citizenship of 
the state." In explaining the motives that prompted the con- Motives 
version of the freedmen, made such by the Thirteenth Amend- P'^ompt'°g 

•^ Fourteenth 

ment, mto freemen, made such by the Fourteenth, the Court Amendment, 
said : " Notwithstanding the formal recognition by those states 
of the abolition of slavery, the condition of the slave race would, 
without further protection of the Federal Government, be 
almost as bad as it was before. Among the first acts of legis- 
lation, adopted by several of the states in the legislative bodies 
which claimed to be in their normal relations with the Federal 
Government, were laws which imposed upon the colored race 
onerous disabilities and burdens, and curtailed their rights in 
the pursuit of life, liberty, and property, to such an extent that 
their freedom was of little value, while they had lost the pro- 
tection which they had received from their former owners from 
motives both of interest and humanity." An able commenta- Guthrie's view, 
tor on the Fourteenth Amendment has said that it "national- 
ized the whole sphere of civil liberty. . . . Some of its provis- 
ions were already embodied in most of the state constitutions 
and bills of rights ; but the experience of the Civil War and of 
the period of reconstruction had convinced the people that 
fundamental rights could no longer coexist in safety with un- 
restrained power in the states to alter their constitutions and 
laws as local prejudice or interest might prompt or passion im- 
pel. The rights of the individual to life, liberty, and property 
had to be secured by the Federal Constitution itself, as, indeed, 
they should have been when it was originally framed. The 
Amendment, therefore, placed the essential rights of life, lib- 
erty, and property in the several states of the Union under the 
ultimate protection of the National Government." ^ 

The national citizenship thus created as a substantive and A new 
independent thing was placed by Section i under the protec- ^^^j-ta* 
tion of a new Magna Carta, enforceable by the federal courts, 
the first portion of which was manufactured out of ancient 
* Guthrie, The Fourteenth Amendment, 2. 



354 



THE AMERICAN CONSTITUTION 



[Ch. 



English material, while the second is purely an American in- 
vention. Every citizen of the United States is now protected 
against unlawful state interference by the provision that "no 
state shall make or enforce any law which shall abridge the 
privileges or immunities of citizens of the United States; nor 
(i) shall any state deprive any person of life, liberty, or property 
without due process of law ; nor (2) deny to any person within 
its jurisdiction the equal protection of the laws." The last 
clause, invented at the time the Amendment was drawn, has 
no connection with English constitutional history. Mr. Justice 
Justice Miller's Miller took entirely too narrow a view of that clause in the 
yjg^ Slaughter-House cases when he said: "We doubt very much 

whether any action of a state not directed by way of discrimina- 
tion against the negroes as a class, or on account of their race, 
will ever be held to come within the purview of this provision." 
The broader views expressed by Justices Bradley and Swayne, 
on behalf of themselves and Chief Justice Chase, and by 
Justice Field in his dissenting opinion have prevailed. The far- 
sighted jurists since called upon to construe Section i — per- 
ceiving that it had wrought a revolution, that it had shifted the 
I centre of gravity of the Constitution — have not been slow to 
dissever it from the question of slavery altogether. As no such 
word is contained in it, and no particular class or condition of 
persons is referred to, it has been easy to extend it beyond the 
protection of the colored race by making it a general rule of 
conduct, civil and political, established as a fixed standard of 
principles governing individual rights and liberties applicable 
at all times and to all conditions, by invoking Chief Justice 
Marshall's rule. Marshall's rule of construction, which declares that "the case, 
being within the words of the rule, must be within its opera- 
tion likewise, unless there be something in the literal construc- 
tion so obviously absurd, or mischievous, or repugnant to 
the general spirit of the instrument, as to justify those who 
expound the Constitution in making it an exception."^ It has 
been expressly held that "doubtless the intention of the Con- 
gress which framed and of the states which adopted this Amend- 
ment of the Constitution must be sought in the words of the 
Amendment; and the debates in Congress are not admissible 
as evidence to control the meaning of those words." ^ 

^ Dartmouth College v. Wood- '' United States v. Wong Kim 

ward, 4 Wheat. 518, 644. Ark, 169 U. S. 649, 699. 



XL] THE CIVIL WAR AMENDMENTS 355 

The wise and legitimate effort thus made to widen the new 
citizenship beyond the circumstances out of which it grew was 
greatly advanced when on the argument of the San Mateo San Mateo 
County case ^ in the Supreme Court, December 19, 1882, Mr. ^°^°*y '^*^- 
Roscoe Conkling, a leading member of the Reconstruction Com- 
mittee that framed the Amendment, produced for the first time 
the unpublished journal of the committee, which showed, step 
by step, the evolution of its provisions. That it was the pur- 
pose of the Committee to give to such provisions the broadest 
scope and operation, and not in any way to confine their bene- 
fit and protection to the colored race, was made plain by Mr. 
Conkling, who, in the course of his argument, said: "At the Conkling's 
time the Fourteenth Amendment was ratified, as the records ^ ^ ^™™ ' 
of the two Houses will show, individuals and joint-stock com- 
panies were appealing for congressional and administrative 
protection against invidious and discriminating state and local 
taxes. One instance was that of an express company, whose 
stock was owned largely by citizens of the State of New York, 
who came with petitions and bills seeking Acts of Congress to 
aid them in resisting what they deemed oppressive taxation in 
two states, and oppressive and ruinous rules of damages applied 
under state laws. That complaints of oppression in respect of 
property and other rights, made by citizens of Northern States 
who took up residence in the South, were rife, in and out of 
Congress, none of us can forget; that complaints of oppres- 
sion in various forms, of white men in the South, — of ' Union 
men,' — were heard on every side, I need not remind the Court. 
The war and its results, the condition of the freedmen, and the 
manifest duty owed to them, no doubt brought on the occa- 
sion for constitutional amendment; but when the occasion 
came, and men set themselves to the task, the accumulated evils 
falling within the purview of the work were the surrounding 
circumstances, in the light of which they strove to increase and 
strengthen the safeguards of the Constitution and laws." 

In 1883 Mr. Justice Field, in his decision in the Railroad Tax Justice Field 
cases ^ in the United States Circuit Court of California, said: ^ax^s^ 
"Oppression of the person and spoliation of property by any 
state were thus forbidden, and equality before the law was 

1 116 U.S. 138. 

» Santa Clara County v. Southern Pac. R. Co., 118 U. S. 394. 



356 



THE AMERICAN CONSTITUTION 



[Ch. 



Justice Brown 
in Plessy v. 
Ferguson. 



Distinctions 
based on color. 



secured to all. . . . With the adoption of the Amendment the 
power of the states to oppress any one under any pretense or in 
any form was forever ended ; and thenceforth all persons within 
their jurisdiction could claim equal protection under the laws. 
. . . No state — such is the sovereign command of the whole 
people of the United States — no state shall touch the life, the 
liberty, or the property of any person, however humble his lot 
or exalted his station, without due process of law ; and no state, 
even with due process of law, shall deny to any one within its 
jurisdiction the equal protection of the laws." 

At a little later day the Supreme Court settled another 
aspect of the matter of vital importance to the harmony of 
the country. In Plessy v. Ferguson,^ speaking through Mr. 
Justice Brown, it said: "A statute which implies a mere legal 
distinction between the white and colored races — a distinc- 
tion which is founded in the color of the two races, and which 
must always exist so long as white men are distinguished from 
the other race by color — has no tendency to destroy the legal 
equality of the two races, or reestablish a state of involun- 
tary servitude. Indeed, we do not understand that the Thir- 
teenth Amendment is strenuously relied upon by the plaintiff 
in error in this connection. 2. By the Fourteenth Amendment 
all persons born or naturalized in the United States, and sub- 
ject to the jurisdiction thereof, are made citizens of the United 
States and of the state wherein they reside. . . . The object of 
the Amendment was undoubtedly to enforce the absolute equal- 
ity of the two races before the law, but in the nature of things 
it could not have been intended to abolish distinctions based 
on color, or to enforce social, as distinguished from political, 
equality, or a commingling of the two races upon terms unsatis- 
factory to either. Laws permitting, and even requiring their 
separation in places where they are liable to be brought into 
contact do not necessarily imply the inferiority of either race 
to the other, and have been generally, if not universally, re- 
cognized as within the competency of the state legislatures in 
the exercise of their police power. The most common instance 
of this is connected with the establishment of separate schools 
for white and colored children, which have been held to be 
a valid exercise of the legislative power even by courts of states 
1 163 U. S. 537. 



XL] THE CIVIL WAR AMENDMENTS 357 

where the political rights of the colored race have been longest 
and most earnestly enforced. ... In United States v. Stan- 
ley (Civil Rights cases), 109 U. S. 3, it was held that an Act Civil Righst 
of Congress, entitling all persons within the jurisdiction of the ^^^^^' 
United States to the full and equal enjoyment of the accom- 
modations, advantages, facilities, and privileges of inns, public 
conveyances on land and water, theatres, and other places of 
amusement, and made applicable to citizens of every race and 
color, regardless of any previous condition of servitude, was 
unconstitutional and void, upon the ground that the Fourteenth 
Amendment was prohibitory upon the states only, and the leg- 
islation authorized to be adopted by Congress for enforcing it 
was not direct legislation on matters respecting which the states 
were prohibited from making or enforcing certain laws, or do- 
ing certain acts, but was corrective legislation such as might be 
necessary or proper for counteracting and redressing the effect 
of such laws or acts. In delivering the opinion of the Court, 
Mr. Justice Bradley observed that the Fourteenth Amendment 
'does not invest Congress with power to legislate upon sub- 
jects that are within the domain of state legislation, but to 
provide modes of relief against state legislation or state action, 
of the kind referred to.'" 

As the protection guaranteed by our new Magna Carta ex- Persons bom 
tends to all "persons born or naturaHzed in the United States, "subject to the 

^ . junsdictioii. 

and subject to the jurisdiction thereof,' it is not strange that 
persons of all races, as well as artificial persons, should have 
sought shelter under its paramount authority. Where the par- 
ents of a child born in the United States were citizens, there 
could be no difficulty as to its nationality ; but the status of 
a child born in the United States of Indians, or of Chinese, or 
other alien parentage was quite another matter. In the case of 
Elk V. Wilkins ^ it was held that an Indian born a member 
of one of our Indian tribes still recognized as such — although 
he had voluntarily separated himself from his tribe and taken 
up his residence among the white people, but without being 
naturalized or taxed — was born "subject to the jurisdiction" 
of his tribe. Therefore he was not a citizen of the United States, 
because not born "subject to the jurisdiction" thereof. Such 
was the prelude to the great case in which was settled the legal 
1 112 U. S. 94, 98. 



358 



THE AMERICAN CONSTITUTION 



[Ch. 



U. S. V. Wong 
Kim Ark. 



Rule in Cal- 
vin's case 
followed. 



A corporation 
a person. 



status of all other persons born in the United States of alien 
parentage. In United States v. Wong Kim Ark ^ it was held 
that a child born in the United States of parents of Chinese 
descent — who at the time of his birth are subjects of the 
Emperor of China, but have a permanent domicile and resid- 
ence in this country, and are carrying on business here, and 
are not employed in any diplomatic or official capacity under 
the Emperor of China — becomes at the time of his birth a 
citizen of the United States, by virtue of the first clause of the 
Fourteenth Amendment. Here the rule of the civil law as to 
the allegiance of the parents was set aside in favor of the com- 
mon law rule of locality of birth, under which it has been long 
held that every child born in England of alien parents is a 
natural born subject, unless the child of a diplomatic represent- 
ative of a foreign state, or of an alien enemy in hostile occupa- 
tion of the place where the child was born. In tracing that 
principle with its quaHfications back to the leading case, known 
as Calvin's case, or the case of the Postnati,^ decided in 1608, 
the Court, speaking through Mr. Justice Gray, said that the 
Constitution of the United States must be interpreted in the 
light of the common law: "The interpretation of the Constitu- 
tion of the United States is necessarily influenced by the fact 
that its provisions are framed in the language of the English 
common law, and are to be read in the light of its history. 124 
U. S. 478. II. The fundamental principle of the common law 
with regard to English nationality was birth within the allegi- 
ance, also called 'ligealty,' 'obedience,' 'faith,' or 'power' of 
the King. The principle embraced all persons born within the 
King's allegiance and subject to his protection." That conclu- 
sion as to the citizenship of a child born of alien parentage was 
not reached until thirty years after the adoption of the clause 
in question. Not until after the lapse of eighteen years was it 
definitely held for the first time, in the case of Santa Clara Co. 
V. Southern Pacific Railroad,^ that a corporation is a person 
within the meaning of the first section. Then followed the 
cases of Minn. Ry. Co. v. Beckwith,* Covington & L. Turnp. 
Road Co. V. Sandford^ and Smyth v. Ames,® in which " it is now 

^ 169 U. S. 649 (1898). 
2 See The Origin and Growth of the 
Eng. Const., ii, 227 sq. 
« 118 U. S. 394 (i886). 



129 U. S. 268. 
164 U. S. 578. 
169 U. S. 466. 



XI.] THE CIVIL WAR AMENDMENTS 359 

settled that corporations are persons within the meaning of the 
constitutional provisions forbidding the deprivation of pro- 
perty without due process of law, as well as the denial of the 
equal protection of the laws." Thus it was settled that corpor- not a dtizea. 
ations are "persons" but not "citizens" entitled to the "priv- 
ileges or immunities of citizens of the United States." As the 
Santa Clara case involved a domestic corporation it was after- 
wards held in Philadelphia Fire Ass. v. New York,^ that a state 
could prescribe whatever condition it saw fit for permitting a 
foreign insurance company to transact business within its lim- 
its even to the extent of total exclusion, although it could not 
exclude an individual. Such power of exclusion cannot be ap- Power of 
plied, however, to corporations engaged in interstate commerce, ^^'^"^o'*- 
or to agencies of the General Government. "The only limita- 
tion upon this power of the state to exclude a foreign corpor- 
ation from doing business within its limits, or hiring offices for 
that purpose, or to exact conditions for allowing the corpora- 
tion to do business or hire offices there, arises where the cor- 
poration is in the employ of the Federal Government, or where 
its business is strictly commerce, interstate or foreign. The 
control of such commerce, being in the Federal Government, is 
not to be restricted by state authority." ^ 

When the first section of the Fourteenth Amendment pro- 39th chapter of 
vided, "nor shall any state deprive any person of life, liberty, Magna Carta, 
or property, without due process of law," it cast upon the Su- 
preme Court the profoundly difficult task of defining and ap- 
plying to a vast number of subject-matters an historic formula 
which has descended to us from the Great Charter of King 
John (12 15), whose thirty-ninth chapter declares that "no 
freeman shall be arrested, or detained in prison, or disseized, 
or outlawed, or banished, or in any way molested ; and we will 
not set forth against him, nor send against him, unless by the 
lawful judgment of his peers and by the law of the land." In 
the reissues of the Great Charter this provision appears with 
the insertion in the second (2 Hen. Ill, 12 17) and third (9 Hen. 
Ill, 1225) charters of Henry III, of the words "of his freehold 
or liberties, or free customs," so that the clause in its final form 
is: "No freeman shall be arrested, or detained in prison, or dis- 

1 119 U. S. no. 

* Pembina Con. Silver Mining Co. v. Pa., 125 U. S. 181. 



36o 



THE AMERICAN CONSTITUTION 



ICh. 



Confirmatio 

Cartarum, 

1297. 



Coke's Second 
Institute, 1632, 



seized of his freehold, or liberties, or free customs, or outlawed, 
or banished," ^ etc. By the Confirmatio Cartarum of 1297 the 
Great Charter, which came to be regarded with almost super- 
stitious reverence, was taken out of the category of statutes 
and became "a sacred text, the nearest approach to a 'funda- 
mental statute ' that England has ever had." ^ As such a docu- 
ment was appealed to by each succeeding generation as a living 
guarantee of the rights to which it aspired, it came to be inter- 
preted in each age according to its needs and aspirations. A 
famous commentator on Goethe's Faust has said : "Like all the 
really great productions of literature this world-poem possesses 
the magic power of appealing in a different way to every new 
generation; and like the fathomless crystal lake of the high 
Sierras it reflects only the picture of the beholder." ^ And so the 
English people have been looking from age to age into the Great 
Charter, which has mirrored for each succeeding generation its 
own peculiar conception of civil liberty. Out of the English 
Renaissance and Reformation grew the larger conception of 
that subject which expressed itself in the Puritan Revolution 
of 1640. In the first stage of the struggle with the Stuarts 
appeared upon the scene a dogmatic lawyer whose aspirations 
in favor of liberty were deeply colored by his associations with 
the past. Coke's First Institute, begun in 162 1, was completed 
in 1628, while his Second Institute — a commentary on Magna 
Carta and other statutes, so frequently appealed to by our 
courts as the best exposition of them — was not published 
until 1632. In estimating the value of Coke as an expounder of 
the Great Charter, it is impossible to ignore the fact that, after 
having sat in the Star Chamber, he died September 3, 1634, 
while the entire code of Star Chamber law and High Commis- 
sion law was in full force. As an illustration, down to his death 
the system of compulsory self-incrimination was a part of the 
Star Chamber code. During the one hundred and forty-two 
years that intervened between the death of Coke and the 



^ In the original text of 9 Henry 
III, chapter 29 reads: "NuUus liber 
homo capiatur vel imprisonetur aut 
disseisietur de Ubero tenemento suo 
vel libertatibus, vel liberis consuetu- 
dinibus suis, aut utlagetur, aut ex- 
uletur, aut aliquo modo destruatur, 



nee super eum ibimus, nee super 
eum mittemus, nisi per legale judi- 
cium parium suorum, vel per legem 
terrae." 

2 Pollock & Maitland, Hist. (2d 
ed.) i, 173. 

' Dr. Julius Goebel's Faust, p. vi. 



XL] THE CIVIL WAR AMENDMENTS 361 

severance of the English colonies in America from the mother 
country, what may be called the ancient Constitution of Eng- 
land, first clearly defined in the Great Charter, was transformed 
into the modern Constitution by the Revolutions of 1640 and 
1688. The reformed and invigorated constitutional system 
that stands out after those revolutions was a vastly wider and 
more complete fabric of liberty under law than that existing in 
Coke's time. Those revolutions brought into being many new 
constitutional principles of which Coke never heard. The Blackstone, 
great English commentator, Blackstone, who looked into "the ^'^^• 
fathomless crystal lake," in 1758 had reflected for him a con- 
dition of things Coke could not possibly have seen in 1632. As 
the "Commentaries" of Blackstone flooded this country just 
before the Revolution, American statesmen and jurists of that 
day knew Coke through Blackstone, with his doctrines amended 
and expanded by the changes the Revolutions of 1640 and 1688 
had wrought in the ancient Constitution as it stood in 1632. 
Thus trained and influenced, the founders of the Republic 
epitomized in our first state constitutions the modern English 
Constitution as Blackstone had defined it. 

If anything is certain in the history of any country it is that Influence of 
the essence of the English constitutional system as reformed jf^^n'^g^uf' 
by the Revolutions of 1640 and 1688, and as defined by Black- tion. 
stone in 1758, passed into our first state constitutions, whose 
bills of rights set forth, for the first time, in a written and dog- 
matic form, the entire scheme of civil liberty as it existed in 
England in 1776. The draftsmen of those bills of rights would 
have recoiled with horror at the thought that they were found- 
ing American constitutional law upon the ancient English 
Constitution as it existed in 1632, before the meeting of the 
Long Parliament, with the Star Chamber and High Commis- 
sion intact. And here the fact should be noted that in the bills 
of rights adopted in 1776, or shortly thereafter, certain new 
principles of constitutional law that had come into existence 
on the other side of the Atlantic were here cast for the first 
time in a dogmatic form. As an illustration, reference may be 
made to the Bill of Rights of Virginia of 1776, which declares Bill of Rights 
"that the legislative and executive powers of the state, should o^ Virginia, 
be separate and distinct from the judiciary." Montesquieu^ 
* Spirit of Laws, bk. xi, ch. 6. 



362 



THE AMERICAN CONSTITUTION 



[Ch. 



Compulsory 
self-incrimina- 
tion abolished. 



Restatements 
of chapter 39. 



had some years before noted the existence of that division as 
peculiarly distinctive of the English Constitution, but it was 
first stated in a dogmatic form in the Virginia Bill of Rights 
drafted by George Mason. In the same instrument it is stated 
as a principle of constitutional law, in connection with trial by 
jury, that no man can "be compelled to give evidence against 
himself," — a formula repeated in almost the same words in 
most, if not all, of the contemporary documents. Not until 
after the Revolution of 1688, and as a consequence of it, was 
the principle of compulsory self-incrimination abolished. As 
Stephen has expressed it: "Soon after the Revolution of 1688, 
the practice of questioning the prisoner died out";^ it was not 
abolished by statute or ordinance. And so it came to pass that 
the exemption from that cruel provision of the Star Chamber 
code was first defined as a principle of constitutional law in 
the American bills of rights of 1776. In the same way passed 
into those documents the various restatements of chapter 39 
of the Great Charter in which were first reflected the American 
conception of due process of law. 

It appears in the following forms in the state constitutions 
of 1776. In the act of that year, continuing the charter of Con- 
necticut of 1662 as the organic law of the state, it is provided 
"that no man's life shall be taken away: no man's honor or 
good name shall be stained : no man's person shall be arrested, 
restrained, banished, dismembered, nor any ways punished: no 
man shall be deprived of his wife or children : no man's goods or 
estate shall be taken away from him, nor any ways indamaged 
under the color of law, or countenance of authority; unless 
clearly warranted by the laws of this state." In Maryland's 
constitution of the same year it is provided " that every free- 
man, for any injury done him in his person or his property, 
ought to have remedy, by the course of the law of the land, and 
ought to have justice and right freely without sale, freely with- 
out any denial, and speedily without delay, according to the law 
of the land . " In North Carolina's constitution of the same year 
it is provided "that no freeman ought to be taken, imprisoned, 
or disseized of his freehold, liberties, or privileges, or outlawed, 
or exiled, or in any manner destroyed, or deprived of his life, 
liberty, or property, but by the law of the land." In Pennsyl- 
^ History of the Criminal Law of England, i, 440. 



XI.] THE CIVIL WAR AMENDMENTS 363 

vania's constitution of the same year it is provided, "nor can 
any man be justly deprived of his liberty except by the laws of 
the land, or the judgment of his peers." In Virginia's consti- 
tution of the same year it is provided "that no man be de- 
prived of his Uberty, except by the law of the land or by the 
judgment of his peers." In Vermont's constitution, drafted in 
1777 and affirmed in 1779, it is provided, "nor can any man 
be justly deprived of his liberty, except by the laws of the land 
or the judgment of his peers." In South Carolina's constitu- 
tion of 1778 it is provided "that no freeman of this State be 
taken or imprisoned, or disseized of his freehold, liberties, or 
privileges, or outlawed, exiled, or in any manner disseized or de- 
prived of his life, liberty, or property, but by the judgment of 
his peers or by the law of the land." In Massachusetts' con- 
stitution of 1 780 it is provided that "no subject shall be arrested, 
imprisoned, despoiled, or deprived of his property, immunities, 
or privileges, put out of the protection of the law, exiled or 
deprived of his life, liberty, or estate, but by the judgment of 
his peers, or the law of the land." In the New Hampshire 
constitution of 1784 the same provision is repeated, word for 
word. 

An attempt has now been made to state within a narrow com- Genesis of Eng- 
pass the history of the famous formula that underlies the Eng- lish conception 

*. "^ ° of due pro- 

lish conception of due process of law, from its advent in the cess of law. 
Great Charter of 12 15 down to its embodiment in the Ameri- 
can state constitutions adopted in 1776 or shortly thereafter. 
Emphasis has been given, first, to the fact that during the 
five hundred and sixty-one years intervening between those 
dates the meaning of the formula varied from age to age, each 
generation perceiving in it its own peculiar conception of civil 
liberty; second, to the fact that our American states adopted 
it with the meaning attached to it in 1776. If Bishop Stubbs 
may say that "the whole of the constitutional history of Eng- 
land is little more than a commentary on Magna Carta," ^ we 
may say that the very heart, the very essence of that history is 
embodied in the 39th chapter, whose outcome has transformed 
the government of England into a government of law as dis- 
tinguished from a government of functionaries. In the weighty 
words of Lieber, "The guarantee of the supremacy of law leads 
* Constitutiojuil History, i, 572. 



364 THE AMERICAN CONSTITUTION [Ch. 

to a principle which, so far as I know, it has never been at- 
tempted to transplant from the soil inhabited by Anglican peo- 
A government pie, and which, nevertheless, has been, in our system of liberty, 
tinffuished ^^^ natural production of a thorough government of law as 
from one of contradistinguished to a government of functionaries."^ This 
functionaries, purely Anglican "guarantee of the supremacy of law" first 
passed into the Constitution of the United States as a part of 
the Fifth Amendment, which provides that "no person shall 
be held to answer for a capital, or otherwise infamous crime, 
unless on a presentment or indictment of a grand jury, except 
in cases arising in the land or naval forces, or in the militia, 
when in actual service in time of war or in public danger ; nor shall 
any person be subject for the same offense to be twice put in 
jeopardy of life or limb; nor shall be compelled in any criminal 
case to be a witness against himself, nor be deprived of life, lib- 
erty, or property, without due process of law; nor shall private 
property be taken for public use, without just compensation." 
Murray v. Strangely enough, not until the judgment in Murray v. Ho- 

Co., 1856 boken Land Co.,^ rendered in 1856, was the clause providing 

that "no person shall be . . . deprived of life, liberty, or pro- 
perty, without due process of law" submitted to the Supreme 
Court of the United States, where it was expounded in the light 
of its history. In that case the Court, speaking through Mr. 
Justice Curtis, said: "The effect of the proceedings authorized 
by the Act in question is to deprive the party, against whom 
the warrant issues, of his life and property, without due process 
of law ; and therefore is in conflict with the fifth article of the 
Amendments of the Constitution. . . . The words 'due process 
of law ' were undoubtedly intended to convey the same mean- 
ing as the words 'by the law of the land,' in Magna Carta. 
Lord Coke in his commentary on those words (2 Inst. 50), says, 
they mean due process of law. The constitutions which had 
been adopted by the several states before the formation of the 
Federal Constitution, following the language of the Great 
Charter more closely, generally contained the words, 'but by 
the judgment of his peers, or the law of the land.' . . . To have 
taken the clause 'law of the land,' without its immediate con- 
text, might possibly have given rise to doubts, which would be 

^ Civil Liberty and Self-Government, 91. 
2 18 Howard, 272. 



XI.] THE CIVIL WAR AMENDMENTS 365 

effectually dispelled by using those words which the great 
commentator on Magna Carta had declared to be the true 
meaning of the phrase ' law of the land ' in that instrument, and 
which were undoubtedly then received as their true meaning." 
Here began the manifest historical error of appealing to Coke's A manifest 
commentary on Magna Carta, published in 1632, as the true ^'s^ncal 
key to its meaning, instead of to the ' * Commentaries " of Black- 
stone, put in their present form in 1758, after the meaning of 
due process of law had been vastly widened by the results of 
the Revolutions of 1640 and 1688. The historical error thus in- 
augurated was repeated when in 1878 the Supreme Court was 
called upon for the first time to construe, in Davidson v. New Davidson v. 
Orleans,^ that clause of the Fourteenth Amendment which de- ^^ ^ ^^^' 
clares, "nor shall any state deprive any person of life, liberty, 
or property, without due process of law." In that case the 
Court, speaking through Mr. Justice Miller, said: "The pro- 
hibition against depriving the citizen or subject of his life, 
liberty, or property, without due process of law, is not new in 
the constitutional history of the English race. It is not new 
in the constitutional history of this country, and it was not 
new in the Constitution of the United States when it became 
a part of the Fourteenth Amendment, in the year 1866. The 
equivalent of the phrase * due process of law,' according to Lord 
Coke, is found in the words 'law of the land,' in the Great 
Charter, in connection with the writ of habeas corpus, the 
trial by jury, and other guaranties of the rights of the subject 
against the oppression of the Crown." 

As early as 1883, Mr. Justice Matthews, when confronted, in Hurtados. 
Hurtado v. California,^ with Mr. Justice Curtis's misleading his- ^ °""*' 
torical statement, rejected it, saying: "This, it is argued, fur- 
nishes an indispensable test of what constitutes ' due process of 
law ' : that any proceeding otherwise authorized by law, which 
is not thus sanctioned by usage, or which supersedes and dis- 
places one that is, cannot be regarded as due process of law. . . . 
But to hold that such a characteristic is essential to due pro- 
cess of law, would be to deny every quality of the law but its 
age, and to render it incapable of progress or improvement. It 
would be to stamp upon our jurisprudence the unchangeable- 
ness attributed to the laws of the Medes and Persians. This 
1 96 U. S. 97. * no U. S. 528. 



366 THE AMERICAN CONSTITUTION [Ch. 

would be all the more singular and surprising, in this quick and 
active age, when we consider that, owing to the progressive de- 
velopment of legal ideas and institutions in England, the words 
of Magna Carta stood for very different things, at the time of 

THE SEPARATION OF THE AMERICAN COLONIES, from what they 

represented originally. ... In this country written constitu- 
tions were deemed essential to protect the rights and liberties 
of the people against the encroachments of power delegated 
to their governments, and the provisions of Magna Carta were 
incorporated into Bills of Rights"; that is, into bills of rights 
of the first state constitutions, because there were no other 
bills of rights. In these golden sentences Mr. Justice Mat- 
thews solved the problem by announcing that the Supreme 
Court, when construing the due process of law clause as it 
appears in the Fifth and Fourteenth Amendments, should take 
that formula with the meaning annexed to it in English consti- 
tutional law, "at the time of the separation of the American 
Colonies" as contradistinguished from the meaning annexed to 
it in 1632, when Coke's Second Institute was published. That 
conclusion he greatly strengthened by the statement that "the 
provisions of Magna Carta were incorporated into Bills of 
Rights," that is, into the bills of rights of our first state con- 
stitutions. Thus a new and unassailable historical test was 
laid down as a guide whenever a particular law or procedure 
is drawn in question on the ground that it is wanting in due 
process of law, and that new test received emphatic confirma- 
tion when the Supreme Court, speaking through Mr. Justice 
Lowe t». Kansas. Gray in Lowe v. Kansas,^ said: "Whether the mode of pro- 
ceeding prescribed by this statute, and followed in this case, 
was due process of law depends upon the q\ie.stionwhether it was 
in substantial accord with the law and usage of England before 
THE Declaration of Independence, and in this country since 
it became a nation, in similar cases." That emphatic refusal to 
recognize as a correct historical test the condition of English 
constitutional law as it existed in 1632 was repeated in no un- 
Twinings. Certain terms in Twining v. New Jersey,^ when the Supreme 
New Jersey. Court, speaking through Mr. Justice Moody, said : " It does not 
follow, however, that a procedure settled in English law at the 
time of the emigration, and brought to this country and prac- 
1163U. S. 81. *2iiU.S. loi. 



XL] THE CIVIL WAR AMENDMENTS 367 

ticed by our ancestors, is an essential element of due process of 
law. I J that were so the procedure of the first half of the seventeenth 
century would he fastened upon American jurisprudence like 
a strait-jacket, only to he loosed hy constitutional amendment ^ 
Let us hope that it has thus been irrevocably settled that when 
the new Magna Carta, by which the national citizenship cre- 
ated by the first section of the Fourteenth Amendment is 
guarded, is to be construed, it will not be held to be the "strait- 
jacket" defined in Coke's Second Institute published in 1632, 
before the meeting of the Long Parliament, but that wider and 
more enlightened system of civil liberty as understood in Eng- 
land after the results of the glorious Revolutions of 1640 and 
1688 had been fully worked out. 

After all that has been said is admitted, the fact remains that Rule of in- 
it is gravely difficult in a particular case to determine when the exdl^on 
act of a state, executive, legislative, or judicial, takes away 
from a citizen of the United States, as such, a right so funda- 
mental that its loss may be said to "deprive any person of life, 
liberty, or property, without due process of law." Conceding 
that that formula is to be taken here with the broad and liberal 
meaning attached to it at the time of the severance from the 
mother country, the task of defining its precise scope and mean- 
ing is so difficult that the Supreme Court has persistently de- 
clined to undertake it. In the place of a definition the Court has 
discreetly substituted a working rule best described in its own 
language: "But, apart from the imminent risk of a failure to 
give any definition which would be at once perspicuous, com- 
prehensive, and satisfactory, there is wisdom, we think, in the 
ascertaining of the intent and application of such an import- 
ant phrase in the Federal Constitution, by the gradual pro- 
cess of judicial inclusion and exclusion, as the cases presented 
for decision shall require, with the reasoning on which such 
decisions may be founded."^ In a word, the rule is that when 
a citizen of the United States, as such, complains that a funda- 
mental right guaranteed by the clause in question has been 
taken away, the Court will say in that particular case whether 
the right is an incident of national citizenship, and as such 
within its protection, or an incident of state citizenship, whose 
protection belongs to the state alone. 

^ Davidson v. New Orleans, 96 U. S. 97. 



368 



THE AMERICAN CONSTITUTION 



[Ch. 



The effort to 
narrow federal 
jurisdiction. 



A state may 
abolish grand 
jury system. 



May alter 
number of 
petit jury. 



That there is a strong practical motive always impelling the 
Court to narrow its jurisdiction by taking the latter view, has 
been admitted by the Court itself. After stating that so long 
as the due process of law clause was only a part of the Fifth 
Amendment it "has rarely been invoked in the judicial forum, 
or the more enlarged theatre of public discussion," attention 
was called to the fact, as early as 1878, that "while it has been 
a part of the Constitution, as a restraint upon the power of the 
states, only a few years, the docket of this Court is crowded with 
cases in which we are asked to hold that state courts and state 
legislatures have deprived their citizens of life, liberty, or pro- 
perty, without due process of law."^ Since that statement was 
made, the swelling tide of litigation of that character has in- 
creased the necessity that compels the Court to decline jurisdic- 
tion in every case not manifestly within the terms of the clause 
in question. In the famous Slaughter-House cases the Court 
justly declined jurisdiction upon the ground "that the priv- 
ileges and immunities relied on in argument are those which 
belong to citizens of the states as such, and that they are left 
to the state governments for security and protection." In 
Davidson v. New Orleans the Court declined jurisdiction on the 
same ground, saying, "It [the act of the state] may violate 
some provision of the state constitution against unequal taxa- 
tion, but the Federal Constitution imposes no restraints on the 
states in that regard." In Hurtado v. California the Court held 
that a citizen of the United States cannot complain of a convic- 
tion in a state court upon an information for murder in the first 
degree and a sentence of death thereon, because the due pro- 
cess of law clause in question does not necessarily require an 
indictment by a grand jury in a prosecution by a state for mur- 
der. The states are thus enabled to abolish, whenever they see 
fit, the grand jury system, as a part of the machinery of crim- 
inal justice. In Maxwell v. Dow, the Court, after affirming the 
case just cited, went a step further by declaring that "if the 
state has the power to abolish the grand jury and the conse- 
quent proceeding by indictment, the same course of reason- 
ing which established that right will and does establish the 
right to alter the number of the petit jury from that provided 
by the common law." In that case the Court emphasized the 
^ The Slaughter-House cases, 16 Wall. 36. 



XL] THE CIVIL WAR AMENDMENTS 369 

doctrine that the adoption of the Fourteenth Amendment 
has not had the effect of making all the provisions contained 
in the first eight amendments operative in state courts, on 
the ground that the fundamental rights protected by those 
amendments are, by virtue of the Fourteenth Amendment, 
to be regarded as privileges or immunities of citizens of the 
United States. 

While the tendency of the foregoing decisions is clearly in 
the right direction, it is difficult for a student of English consti- 
tutional law to assent to the conclusion reached in Twining v. An unsound 
New Jersey, in which it was held that exemption from self- <^o'i<=l'^»o°- 
incrimination — so firmly settled in the mother country before 
the separation that all or nearly all of the original state con- 
stitutions bristle with a solemn restatement of it — is not one 
of the fundamental rights of national citizenship guaranteed 
by the clause in question. Mr. Justice Harlan was right when 
he said: "I cannot support any judgment declaring that im- 
munity from self-incrimination is not one of the privileges or 
immunities of national citizenship, nor a part of the liberty 
guaranteed by the Fourteenth Amendment against hostile state 
action." His dissenting opinion should have been the judg- 
ment of the Court. While Mr. Justice Moody's statement, that 
"none of the great instruments in which we are accustomed 
to look for the declaration of fundamental rights made refer- . 
ence to it. The privilege was not dreamed of for hundreds of 
years after Magna Carta (1215), and could not have been im- 
plied in the 'law of the land' there secured," is true, — it is 
unimportant. All of the fundamental rights that emerged 
from the Revolutions of 1640 and 1688 were not formulated 
in documents prior to the separation. A conspicuous example 
is to be found in the freedom of speech and the press of which 
no trace can be found either in Magna Carta or in any English 
document prior to 1776. The student of American constitu- Importance of 
tional law should never for a moment forget that the best epi- o^.^^t bills 
tomes of the reformed English Constitution ever written are 
to be found in the bills of rights of our first state constitutions 
drafted by men who knew perfectly what rights were funda- 
mental at that time. The fact that they recognized, with won- 
derful unanimity, that the exemption from self-incrimination 
had become fundamental, and that as such they made it one 



370 THE AMERICAN CONSTITUTION [Ch. 

of the foundation-stones of our American system, should be 
conclusive on every American court. 
Prohibition From the outset it has been settled " that it is no matter by 

state acte what proceeding, or in what manner, the state deprives the 

person of life, liberty, or property, or denies him the equal pro- 
tection of the law, without due process of law, whether by legis- 
lation or judicial decision, or by what officer or agent, or agency, 
so it be by state authority." ^ In Scott v. McNeal,^ it is said: 
"These prohibitions [of the Fourteenth Amendment] extend 
to all acts of the state, whether through its legislative, its ex- 
ecutive, or its judicial authorities. . . . Upon a writ of error to 
review the judgment of the highest court of a state upon the 
ground that the judgment was against a right claimed under 
the Constitution of the United States, this Court is no more 
bound by that court^s construction of a statute of the territory or 
of the state, when the question is whether the statute provided 
for the notice required to constitute due process of law, than 
when the question is whether the statute created a contract 
which has been impaired by a subsequent law." In Twining 
V. New Jersey,' the Court said: "The judicial act of the highest 
court of the state, in authoritatively construing and enforcing 
its laws, is the act of the state." 

After the Parliament of Great Britain, once a local legisla- 
ture, had widened the circle of its jurisdiction, Burke said: "I 
think her nobler capacity is what I call her imperial character; 
in which, as from the throne of heaven, she superintends all 
the several inferior legislatures, and guides and controls them 
Supreme Court all without annihilating any," * In the high place to which the 
guardian of Supreme Court has been lifted as the ultimate guardian of the 
zens p. jjg^ jjg^^jQjja^l (.j^J2enship, it has been given, as never before, the 
power to superintend all the agencies of the states ; and it may 
be truly said that it is faithfully striving to guide and control 
them all without annihilating any. No trust so vast or so deH- 
cate was ever before committed to any court in the world's 
history, — upon its wise and serene execution must mainly de- 
pend the future harmony between the state and federal systems. 

1 Brannon, Fourteenth Amend- ' 154 U. S. 34. 

ment, 97, citing Ex parte Virginia, * 211 U. S. 90. 

313; Chicago, B.&Q. Co. w. Chicago, * Speech on American Taxation, 

166 U. S. 685. April 19, 1774, Works (4th ed.), ii, 75. 



XI.] THE CIVIL WAR AMENDMENTS 371 

It has opened up a fresh fountain of judge-made law from 
which a copious stream has been flowing for more than forty 
years. Whenever a new problem arises, it is solved by a new 
judge-made rule, expounded in a treatise corresponding very 
closely to the responses made by the jurisconsults in the creat- 
ive epoch of Roman jurisprudence. Such treatises, still in a 
plastic form, will sooner or later be systematized and reduced 
to compendia as the responses were in Roman law.^ 

In conclusion, the fact should be noted that the old three- Old three-fifths 
fifths rule as to Representatives and direct taxes (Article i, ^^ abolished. 
Section 2, Clause 3) has been amended by Section 2 of the 
Fourteenth Amendment, which provides that "Representa- 
tives shall be apportioned among the states according to their 
respective numbers, counting the whole number of persons in 
each state, excluding Indians not taxed. But when the right 
to vote at any election for the choice of electors for President 
and Vice-President of the United States, Representatives in 
Congress, the executive and judicial officers of a state, or the 
members of the legislature thereof, is denied to any of the male 
inhabitants of such state, being twenty-one years of age, and 
citizens of the United States, or in any way abridged, ex- 
cept for participation in rebellion, or other crime, the basis 
of representation therein shall be reduced in the proportion 
which the number of such male citizens shall bear to the 
whole number of male citizens twenty-one years of age in 
such state." 

"A few years' experience satisfied the thoughtful men who Fifteenth 
had been the authors of the other two Amendments that, not- Amendment, 
withstanding the restraints of those two articles on the states, 
and the laws passed under the additional powers granted to 
Congress, these were inadequate for the protection of life, lib- 
erty, and property, without which freedom to the slave was no 
boon. They were in all those states denied the right of suffrage. 
The laws were administered by white men alone. It was urged 
that a race of men distinctively marked as was the negro, living 
in the midst of another and dominant race, could never be fully 

* An inspection of the annotated of the Fourteenth Amendment, con- 
Constitution in Appendix xx will stitute of themselves a distinct lit- 
disclose the fact that the cases so far erature to which several tejct-books 
decided, involving the construction have already been devoted. 



372 



THE AMERICAN CONSTITUTION 



[Ch. 



Right to vote 
drawn from 
state. 



Electors of 
House of 
Representa- 
tives. 



secured in their persons and their property without the right 
of suffrage. Hence the Fifteenth Amendment, which declares 
that ' the right of a citizen of the United States to vote shall not 
be denied or abridged by any state on account of race, color, 
or previous condition of servitude.' The negro having, by the 
Fourteenth Amendment, been declared to be a citizen of the 
United States, is thus made a voter in every state of the Union. "^ 
Our political system as a whole rests upon the fundamental 
principle that the right to vote in a state comes from the state, 
which alone possesses the power to confer the franchise. Only 
from the fountain of state power can the right to vote for offi- 
cials, state or federal, be drawn. The electors of President and 
Vice-President are state officers, the method of whose appoint- 
ment the Federal Constitution has no power to direct or con- 
trol. In McPherson w. Blacker,^ it was held that the Constitu- 
tion does not provide that the appointment of electors shall be 
by popular vote, nor that the electors shall be voted for upon 
a general ticket, nor that the majority of those who exercise the 
elective franchise can alone choose the electors. It recognizes 
that the people act through their representatives in the legis- 
lature, and leaves it to the legislature exclusively to determine 
the method of effecting the object. The appointment and mode 
of appointment of electors belong exclusively to the states 
under the Constitution. The qualifications of the electors of the 
House of Representatives are prescribed by the states. Such 
"electors in each state shall have the qualifications requisite 
for electors of the most numerous branch of the state legis- 
latures." As explained heretofore, when our state system was 
founded the right to vote was in the mother country the priv- 
ilege of the few, not of the many. At the time of the separation 
the entire electorate of the British Isles (which included, in 
1909, 7,615,438 electors) did not exceed 400,000.' Every Amer- 
ican state was founded on the principle that it alone could con- 
fer the right to vote upon the few or the many as its sovereign 
will deemed best. To-day any American state can so amend its 
constitution as to provide that no man can vote until he 
attains his ninetieth year, or that no man can vote unless he is 



* Mr. Justice Miller in the 
Slaughter-Houses cases, 16 Wall. 36. 
^ « 146 U. S. I. 



* See the estimate of Dr. Gneist, 

History of the English Constitution, 
p. 722. 



XI.l THE CIVIL WAR AMENDMENTS 373 

possessed of real property to the value of a million of dollars, 

or it might provide that the right to vote shall be vested in 

women only. Such a state constitution would not conflict with 

the national Constitution in any particular whatsoever. The 

only limitation imposed by that Constitution upon the sover- Only one 

eign power of the states to regulate the franchise is that con- ^™"^tio° 

• 1 . , T-r 1 A r t • , .-,,,., on state power. 

tamed m the Fifteenth Amendment, which provides that the 
right of citizens of the United States to vote shall not be denied 
or abridged by the United States or by any state on account of 
race, color, or previous condition of servitude." Unless the right 
to vote, which is derived from the state, is "denied or abridged " 
upon that ground, the Amendment has no application. It was 
therefore held, in United States v. Cruikshank,^ that the right 
of suffrage is not a necessary attribute of national citizenship, 
but exemption from discrimination in the exercise of that right 
"on account of race, color, or previous condition of servitude" 
is. The right to vote in the states comes from the states, but 
the right of exemption from the prohibited discrimination 
comes from the United States ; the former has not been granted 
or secured by the Federal Constitution, but the latter has been. 
That conclusion was first announced in United States v. Reese, ^ 
in which it was said that the Amendment in question does not 
confer the right of suffrage upon any one. It prevents the 
states or the United States, however, from giving preference, 
in this particular, to one citizen of the United States over an- 
other on account of race, color, or previous condition of servi- 
tude. The whole matter was ably summed up in Pope v. Wil- pope t. 
Hams,' in which the Court, speaking through Mr. Justice Peck- Williams, 
ham, said: "The privilege to vote in any state is not given by 
the Federal Constitution, or by any of its amendments. It is 
not a privilege springing from citizenship of the United States. 
Minor v. Happersett, 21 Wall. 162. It may not be refused on 
account of race, color, or previous condition of servitude, but it 
does not follow from mere citizenship of the United States. In 
other words, the privilege to vote in a state is within the juris- 
diction of the state itself, to be exercised as the state may di- 
rect, and upon such terms as the state may deem proper, pro- 
vided, of course, no discrimination is made between individuals, 
in violation of the Federal Constitution. The state might 
» 92 U. S. 542. » 92 U. S. 214. » 193 U. S. 621. 



374 



THE AMERICAN CONSTITUTION 



[Ch, 



Recent South- 
em constitu- 
tions. 



Williams v. 
Mississippi. 



provide that persons of foreign birth could vote without being 
naturalized, and, as stated by Mr. Chief Justice Waitein Minor 
V. Happersett, 21 Wall. 162, such persons were allowed to vote 
in several of the states upon having declared their intention 
to become citizens of the United States. Some states permit 
women to vote; others refuse them that privilege." 

Such were the powers and such the disabilities under which 
the Southern States acted in so remodeUng their constitutions 
in recent years as to meet the aabormal conditions arising out 
of the enfranchisement of the freedmen, who were suddenly 
lifted, without training or probation, from a state of servitude 
to full citizenship. No patriotic mind can ignore the gravity 
or the peril of a situation that has no precedent in political his- 
tory. Among the Southern statesmen who grappled with that 
mighty problem stands preeminent Senator George of Missis- 
sippi, a profound jurist who, as chief justice of his state, had 
been trained for the task. When the fruit of his labors came be- 
fore the Supreme Court in Williams v. Mississippi,^ it appeared 
that he had drafted a constitution in which "every elector 
shall, in addition to the foregoing qualifications, be able to read 
any section of the constitution of this state, or he shall be able 
to understand the same when read to him, or to give a reason- 
able interpretation thereof. ... No person shall be a grand 
or petit juror unless a qualified elector and able to read and 
write." The complaint was that such a constitution — which 
it was admitted did not "discriminate in terms against the 
negro race, either as to the elective franchise or the privilege 
or duty of sitting on juries" — did vest the power in "the ad- 
ministrative officer to determine whether the applicant reads, 
understands, or interprets the section of the constitution de- 
signated. The officer is the sole judge of the examination of 
the applicant, and even though the applicant be qualified, it is 
left with the officer to so determine; and the said officer can 
refuse him registration." Under such conditions the Court held 
that the equal protection of the laws is not denied to colored 
persons by a state constitution and laws which make no dis- 
crimination against the colored race in terms, but which grant 
a discretion to certain officers, which can be used to the abridg- 
ment of the right of the colored persons to vote and serve on 
1 170 U. S. 213 {li. 



XL] THE CIVIL WAR AMENDMENTS 375 

juries, — when it is not shown that their actual administration 
is evil, but only that evil is possible under them. 

A few years later the right of a state to regulate the franchise 
under a similar constitution came before the Supreme Court 
in Giles v. Harris,^ in which a bill was filed praying that certain Giles v. Hams, 
sections of the existing constitution of Alabama "may be de- 
clared contrary to the Fourteenth and Fifteenth Amendments 
to the Constitution of the United States, and void." The sub- 
stance of the sections complained of is thus stated by the Court 
itself: "Before 1903 the following male citizens of the state, 
who are citizens of the United States, were entitled to register, 
viz : First. All who had served honorably in the enumerated 
wars of the United States, including those on either side in the 
'war between the states.' Second. All lawful descendants of 
persons who served honorably in the enumerated wars or the 
War of the Revolution. Third. 'All persons who are of good 
character and who understand the duties and obligations of 
citizenship under a republican form of government.' . . . 
After January i, 1903, only the following persons are entitled 
to register : First. Those who can read and write any article of 
the Constitution of the United States in the English language, 
and who either are physically unable to work or have been 
regularly engaged in some lawful business for the greater part 
of the last twelve months, and those who are unable to read 
and write solely because physically disabled. Second. Owners 
or husbands of owners of forty acres of land in the state, upon 
which they reside, and owners or husbands of owners of real and 
personal estate in the state assessed for taxation at $300 or 
more, if the taxes have been paid, unless under protest. By 
S. 183 only persons qualified as electors can take part in any 
method of party action. By S. 184 persons not registered are 
disqualified from voting." As the primary purpose of the bill Primary 
was to require the board of registrars to enroll upon the voting f "'^f,^ °^ 
lists the plaintiff and a large number of other colored men, who 
had applied for registration before August i, 1902, the Federal 
Circuit Court dismissed it for want of jurisdiction, and the 
Supreme Court affirmed the decree upon the ground that 
equity will not compel a county board of registrars to enroll a 
colored man on the voting lists as a duly qualified voter, under 
» 189 U. S. 474 (1903). 



the biU, 



376 



THE AMERICAN CONSTITUTION 



[Ch. 



Industrial 
education. 



Solution of 
race problem. 



the registration provisions of the Alabama Constitution, Article 
VIII, where the main object of the bill is to have these regis- 
tration provisions, upon which the right to register is founded, 
declared void as a fraud upon the Federal Constitution be- 
cause of discrimination against negroes, since, if that is the 
character of these provisions, the Court will not require officials 
to proceed to act under them. 

As a citizen of Alabama the author is proud of the noble re- 
cord his state has made in the work of uplifting her colored pop- 
ulation and preparing them, through industrial education, for 
the duties of full citizenship. As the head of one of her normal 
schools Booker T. Washington began and has continued that 
worthy and remarkable career as a promoter of industrial edu- 
cation which has been applauded by all good men. In the en- 
couragement and assistance that has come to him from the 
North the hands of both sections have been clasped in advanc- 
ing the only process through which the race problem can be 
finally solved. Born and reared in the midst of a colored popu- 
lation, the author knows that they are not lacking in the ele- 
ments upon which good citizenship must be founded. Their 
conduct during the Civil War is an enduring memorial to their 
fidelity, while the steady advance of many of them as mechan- 
ics and small farmers proves that they are capable of thrift and 
industry. By just treatment, encouragement, and education 
they should be helped along the path to good citizenship. For 
many years such a work has been advancing hopefully in the 
County of Mobile, where an admirable public school system, 
supported almost entirely by taxes paid by the white popula- 
tion, has divided almost equally its benefits with the children 
of the colored people. 



CHAPTER XII 

OUR COLONIAL SYSTEM AND THE MONROE DOCTRINE 

To the Greek mind the state, as the city-commonwealth, was Relation of a 
an organized society of men dwelHng in a walled city, with a to'parent state, 
surrounding territory not too large to permit its free inhabit- 
ants habitually to assemble within its limits to discharge the 
duties of citizens . ^ When a conquering city extended its domin- 
ions by reducing other self-governing cities to the condition of 
dependent allies, such allies were often permitted to enjoy local 
autonomy under their own constitutions, without the right to 
participate in any way in the political affairs of the ruling state 
by whose assembly the foreign relations of the alliance, if alli- 
ance it may be called, were absolutely controlled. The most 
favored members of the Athenian Alliance or Empire, even 
Chios or Mitylene, could not have a voice in the general direc- 
tion of the confederacy, for the simple reason that Greek ex- 
clusiveness rejected to the last the idea of a fusion of any large 
number of cities into a single body with equal rights common 
to all. As the state was the city, those who went out of the city 
went out of the state. Therefore according to Greek ideas, the 
effect of an emigration for the formation of a new settlement 
was an absolute political severance from the mother state, 
which retained no more substantial hold upon its colonies than 
the sentimental tie arising out of the community of blood and 
speech and common religious rights. Rome's relation to her Relation of a 
colonies was entirely different, because no Roman colony was to°Sirent°st2e. 
ever formed without the sanction and direction of the public 
authority. While the Colonia Romana differed from the ColO' 
nia Latina, in that the former permitted its members to retain 
their political rights intact, the colony, whether planted within 

1 Aristotle thought that a state 'AvayKahv ypupl^eiv dXXi^Xour, vohl 

should not be so large as to deny rivi^ elai, rois voXlras. Pol., bk. vii, 

to its citizens the opportunity to ch. iv, 13. 
become familiar with each other. 



378 



THE AMERICAN CONSTITUTION 



[Ch. 



Modern con- 
ception of the 
state as nation. 



Colonies of 
states of the 
new type. 



A colonial 
system of 
complete 
monopoly. 



the bounds of Italy or in provinces like Britain or Gaul, re- 
mained an integral part of the Roman dominion. '^ 

The ancient conception of the state as the city-common- 
wealth gave way to the modern conception of the state as the 
nation, — an aggregation of people occupying a definite por- 
tion of the earth's surface with fixed geographical boundaries, 
the state as known to modern international law. That new 
creation was the outcome of the "process of feudalization " 
through which the Teutonic nations passed, after their settle- 
ments within the limits of the Roman Empire. The kings of 
the states that rose out of the wreck of the empire of Charles 
the Great were kings in the new territorial sense, who stood 
to the lands over which they ruled as a baron to his estate, 
a tenant to his freehold. The form assumed by the monarchy 
in France was reproduced in each subsequent dominion estab- 
lished or consolidated, and thus has arisen the state system of 
modern Europe, in which the idea of territorial sovereignty is 
the basis of all international relations. When the time came 
for states of the new type to send out bands of emigrants to 
found colonies in distant lands, an entirely new conception of 
the relation that should bind such colonies to the mother state 
came into existence. Instead of the emigrants leaving the 
mother state behind them, they were supposed to take it upon 
their backs. "The notion was, where Englishmen are, there 
is England, where Frenchmen are, there is France; and so the 
possessions of France in North America were called New France, 
and one group at least of the English possessions New Eng- 
land."^ On that principle all the western hemisphere passed 
under the control of a colonial system of complete monopoly 
by mother countries, and as a general rule was excluded from 
direct communication with Europe, outside of the respective 
parent states. As colonies were a part of the mother coun- 
try and yet transoceanic with reference to her, maritime 
commerce between them and foreign communities could by 
direct legislation be obliged first to seek the parent state, 

1 Roman colonies thus extended able as propugnacula of the state, 

the language and laws of Rome over as permanent supports to Roman 

wide areas, inoculating the inhab- garrisons and armies, 
itants of the provinces with more * Seeley, The Expansion of Eng- 

than the rudiments of Roman civil- land, 49. 
ization. They were not merely valu- 



XIL] 



OUR COLONIAL SYSTEM 



379 



which thus was made the distributing centre for both new ex- 
ports and imports. By the middle of the seventeenth century 
the idea that Great Britain must dominate upon the sea had 
assumed such clear and definite form as to find expression in 
a series of measures generally known as the Navigation Acts, 
the first of which was passed in 1651, during Cromwell's Pro- Adam Smith 
tectorate. From Adam Smith we learn that "the defense of ^nActeoT 
Great Britain, for example, depends very much upon the 1651- 
number of its sailors and shipping. The Act of Navigation 
therefore very properly endeavors to give the sailors and ship- 
ping of Great Britain the monopoly of the trade of their own 
country. . . . The Act is not favorable to foreign commerce, 
nor to the opulence which can arise from that ; but defense is 
of much more importance than opulence. The Act of Navi- 
gation is perhaps the wisest of all the commercial regulations 
of England." ^ A great thinker of our own has said that "the 
ninth of October, 1 651, is the date of the passing of the Act, 
the general terms of which set for two hundred years the 
standard for British legislation concerning the shipping in- 
dustry. The title of the measure, 'Goods from foreign ports, 
by whom to be imported,' indicated at once that the object in 
view was the carrying trade ; navigation, rather than commerce. 
Commerce was to be manipulated and forced into English bot- 
toms as an indispensable agency for reaching British consum- 
ers. At this time less than half a century had elapsed since the 
first English colonists had settled in Massachusetts and Vir- 
ginia. The British plantation system was still in its beginnings 
alike in America, Asia, and Africa."^ 

The history of modern colonization on a large scale begins Spain as a 
with the Spanish conquests in America, where from the outset ^°^^^^^^- 
the sovereign was regarded as the fountain of all authority. 
An almost regal and absolute power was vested by special 
grants from the King in the persons sent to found the first gov- 
ernments in the New World. The India House at Seville ^ (Casa 



Captain 
Mahan's 
view. 



* Inquiry into the Nature and 
Causes of the Wealth of Nations 
(Rogers ed.), Oxford, 1880, 35-38. 
See also 178. 

* Mahan, Sea Power in its Rela- 
tions to the War of 1812, i, 14. See 
also, 9-1 1, and 23 sq. 



' In order to enable it to super- 
intend more conveniently the ship- 
ping to America, the Casa de la 
Contratacion was transferred to 
Cadiz in 17 17. 



380 



THE AMERICAN CONSTITUTION 



[Ch. 



Oppression 
of colonists, 



de la Contratacion) , established by an ordinance of 1503, with 
authority to grant licenses, to dispatch fleets, and to dispose 
of the results of trade and exploration, became subordinate to 
the Council of the Indies, created by Ferdinand in 151 1 and 
fully organized by Charles V in 1524. The basis of the entire 
fabric was Spanish law, in the form that law had assumed after 

Siete Partidas: its codification in the Siete Partidas, which became funda- 
mental in the colonies as in the mother country. Upon that 
general basis law was administered, subject to such local regu- 
lations and decrees as were promulgated by the Council of the 
Indies, whose bungling and often corrupt legislation soon filled 
its records with masses of contradictory and useless ordinances. 
Spain's colonial system, more paternal than that of England, 
retained in her hands the whole trade of the colonies, and 
guarded her monopoly with the severest penalties. The colon- 
ists, who were compelled to root up their vines and olives, were 
not allowed to raise or manufacture any article the mother 
country could supply. The prices of all European commodities 
were enhanced three, four, or even six fold. It was a vital 
part of that policy to bestow upon natives of the Peninsula 
all offices, from the highest to the lowest, in order to create 
an official and privileged caste, distinct from the people in 
feelings and interests. 

While England was the last of the states of the new type to 
enter upon the work of colonization, she has been able to give 
it a wider extension than any of her competitors. According 
to the theory of the English Constitution, the title to all newly 
discovered lands accrued to the King in his public and regal 
character, and the exclusive right to grant them resided in him 
as a part of the royal prerogative; "upon these principles rest 
the various charters and grants of territory made on this con- 
tinent." ^ The great title-deed under which the English settlers 
in America took actual and permanent possession of the greater 

Great tuie-deed part of the Atlantic seaboard is represented by the charter 
granted by James I, April 10, 1606, creating two distinct cor- 
porations as colonizing agents. "Within the period of ten 
years, under the last of the Tudors and the first of the Stuarts, 
two trading charters were issued to two companies of English 
adventurers. One of these charters is the root of English title 
1 Taney, C. J., in Martin et al. v. The Lessee of Waddell, 16 Peters, 409. 



England as 
a colonizer. 



of April 10, 
1606. 



XII.I OUR COLONIAL SYSTEM 38 1 

to the East and the other to the West. One of these companies 
has grown into the Empire of India; the other into the United 
States of North America."^ In the latter it was declared "that 
all and every the persons, being our subjects which shall go and its tenns as 
inhabit within the said colony and plantation, and every their *° citizenship. 
children and posterity, which shall happen to be born within 
any of the limits thereof, shall have and enjoy all liberties, fran- 
chises, and immunities of free denizens and natural subjects 
within any of our other dominions, to all intents and purposes 
as if they had been abiding and born within this our realm of 
England or in any other of our dominions." It is not therefore 
strange that, under the principles of the English Constitution, 
a country subdued by an army of the Empire becomes immed- 
iately a part of the King's dominions in right of his crown, and 
its Inhabitants, so soon as they pass under the King's protec- 
tion, cease to be enemies or aliens and become subjects. In a 
word, foreign territory becomes a part of the British Empire Effect of 
and its Inhabitants British subjects, both as to the conquering conquest, 
state and foreign nations, ipso facto, by the conquest Itself, 
without any enabling or confirming legislation upon the part 
of the Imperial Parliament. As Lord Coke declared In Cal- Calvin's case. 
vin's case, "they that were born In those parts of France that 
were under actual llgeance and obedience were no aliens, but 
capable of, and heritable to, lands in England." ^ 

The liberality with which the English Constitution thus be- Colonists de- 
stows citizenship and legal rights upon those under Its domin- ation^n'home'' 
ion in foreign lands has ever been more than offset by the ex- assembly. 
elusive spirit, sanctioned by all the precedents of the past, that 
denies to all colonists the right to representation in the sover- 
eign assembly at home which directs the affairs of the Empire 
as a whole. That assembly, while denying to all colonists, as 
every other home assembly had denied, the boon of being heard 
through their representatives, has ever claimed the right to In- 
vade the jurisdiction of all colonial assemblies in order to legis- 
late directly upon internal colonial concerns. In the hands of 
a practical, tax-loving statesman like Grenvllle, that claim was 
not confined to mere supervision ; in such hands, It was held to 

1 Bryce, American Commonwealth, status of the post-nati, cf. Origin and 
i, 430. Growth of the English Constitution, ii, 

* State Trials, ii, 559. As to the 227-229. 



382 



THE AMERICAN CONSTITUTION 



[Ch. 



Cause of 
War of the 
Revolution. 



Our denial of 
representation 
to colonists. 



Scheme 
embodied in 
Ordinance 
of 1787. 



Jefferson head 
of committee. 



mean that the Imperial Parliament could at any moment over- 
ride the acts of the colonial assemblies, without consulting their 
wishes at all, and tax and legislate for the people of Massachu- 
setts and Virginia just as it could for the people of Kent and 
Middlesex. Out of the conflict that finally arose between the 
English and colonial theories, as to the practical omnipotence 
of the Imperial Parliament over self-governing communities 
beyond the four seas, grew the War of the Revolution, and the 
severance of the English colonies in America from the mother 
state. 

When the time came for this nation to establish a colonial 
system it revived that exclusive spirit, as old as civilization 
itself, which denies to colonists the right to speak through re- 
presentatives in the assembly of the mother state. The signing 
of the first Federal Constitution, embodied in the Articles of 
Confederation, was not completed until March i, 1 781, when 
Maryland finally gave it her adhesion, after it was settled that 
the new nationality was to become the sovereign possessor of 
"the whole Northwestern Territory — the area of the great 
states of Michigan, Wisconsin, Illinois, Indiana, and Ohio (ex- 
cepting the Connecticut Reserve)," ^ which, under the Articles 
of Confederation, it had no express right either to hold or 
govern. Notwithstanding that fact, Congress, acting under 
authority clearly implied, boldly entered upon the scheme of 
colonial or territorial government embodied in the Ordinance 
of 1787 for the government of the Northwest Territory. In de- 
scribing that famous enactment, an eminent American histor- 
ian has said: "It was our first effort at colonial government, 
our first attempt to rule a community not fit to become a state 
and enter the Union ; and by it a new political institution, the 
territory, was created in two grades. At the head of the com- 
mittee which reported the Ordinance was the apostle of liberty, 
the father of the American democracy, the man who wrote the 
Declaration of Independence. If one member more than an- 
other of that committee was bound to carry out the principles 
of the Declaration and seek to establish a government in strict 
accordance with them, that member was Jefferson. If any one 
man more than another could be pardoned for attempting to 
carry the self-evident truth to an extreme, Jefferson was that 
^ Fiske, The Critical Period, 194. 



XII.l OUR COLONIAL SYSTEM 383 

man. Yet not for a moment was he led astray by the ideals he 
had announced to the world as the true basis of democratic 
government. He and his fellow members knew well that no 
popular government can stand long or accomplish much for the 
good of the governed which is not carefully adjusted to the 
wants, conditions, and intelligence of the people who are to live 
under it. The plan presented and adopted, therefore, did not 
contain one vestige of self-government till there were five No self-govem- 
thousand free white males living in the territory, and this in ^^^^ ^* outset, 
spite of the fact that the great majority of them would be citi- 
zens from the seaboard states, and well accustomed to self-gov- 
ernment. . . . The clear distinctions between the state and a Distinctions 
territory, thus drawn at the very outset of our career, and the a^d^OTitorT 
principles then established — that Congress was free to govern 
the dependencies of the United States in such a manner as it 
saw fit ; that the government it granted need not be republi- 
can, even in form; that men might be taxed without any repre- 
sentation in the taxing body, stripped absolutely of the fran- 
chise, and ruled by officials not of their own choice, have never 
been departed from, and have often been signally confirmed."^ 
In a word, Jefferson was as hostile to the idea that the colonists 
who grouped themselves in the territories of the United States Agreement 
were entitled, while in that condition of probation, to the full between 

, _ - ^ , , _, . . „ .,, Jefferson and 

benefits of our Federal Constitution, as Grenville ever was to Crenvilie. 
the idea that the English colonists in America were entitled 
to the full benefits of the Constitution of the mother country. 
When the opportunity was presented to Jefferson to design 
a system of colonial or territorial government for inhabitants 
of contiguous territory, drawn in the main from the seaboard 
states, he was unwilling to concede representative government 
at all until there were at least five thousand free white males 
living in the territory. When the settlers reached that num- 
ber, any free white man who had resided there the proper time, 
and who owned fifty acres, might take part in the election of a 
House of Representatives, every member of which must be pos- 
sessed of a freehold of two hundred acres. Such House when 
assembled was authorized to nominate ten men, each possessed 
of a freehold of five hundred acres, of whom the President was 
required to commission five as legislative councillors. The 
1 Prof. J. B. McMaster, in The Forum of December, 1898. 



384 



THE AMERICAN CONSTITUTION 



[Ch. 



Original 
scheme 
standard for 
imitation. 



A fanciful 
outcry. 

Purchase of 

Louisiana, 

1803. 



Territory 
of Orleans. 



House and Council so constituted could by joint ballot choose 
a delegate to represent the territory in the national House of 
Representatives, where he was permitted to speak, but not to 
vote. This oligarchical form of territorial government, created 
by the Continental Congress, and adopted by the First Con- 
gress under the Constitution, became the standard after which 
all others since established have been closely modeled. Jeffer- 
son, with the words of the Declaration of Independence fresh 
upon his lips, was no more inclined to extend the national Con- 
stitution, the special possession of fully organized states, to his 
brethren settled in our colonies or territories, than was Peri- 
cles to extend the Constitution of Athens to Chios or Mity- 
lene, or Grenville the Constitution of England to the colonists 
settled along our Atlantic seaboard. It never occurred to Peri- 
cles, Grenville, or Jefferson that the principles of human right 
demanded or justified such an extension. That idea, which 
finds no support in the world's past history, first found expres- 
sion in the baseless and fanciful outcry that "the Constitution 
follows the flag." 

Strange it is indeed that the makers of the existing Constitu- 
tion should have dismissed the vast subject involved in the ac- 
quisition and government of colonies or territories with the 
brief provision contained in Article iv, Section 3, to the effect 
that "the Congress shall have power to dispose of and make 
all needful rules and regulations respecting the territory and 
other property of the United States." When, in 1803, Jefferson 
was confronted with the lack of express power to purchase 
Louisiana, he fell back, after a momentary hesitation, upon the 
implied power necessarily incident to the nature of the govern- 
ment itself. After that vast and indefinite domain was taken 
from Napoleon for a song, it was divided ; and a part, corre- 
sponding very nearly to the present State of Louisiana, was 
called the "Territory of Orleans." To the new territory thus 
formed an oligarchical form of government was given by Con- 
gress but little in advance of that devised in the first instance 
by Jefferson for the Northwest Territory. Even the right of 
trial by jury was conceded with a serious restriction. During 
the debate on the treaty under which Louisiana was purchased, 
the question was raised that a discrimination was made in 
favor of New Orleans as against Charleston or New York, by 



XII.] OUR COLONIAL SYSTEM 385 

the provision which permitted ships coming from France or 
Spain to enter the ports of Louisiana, during a period of twelve 
years, without paying more duty than was exacted from 
vessels belonging to citizens of the United States. Such a dis- Territorial 
crimination, it was said, conflicted with Article i. Section 9, of ^^- 
the Constitution, which provides that "no preference shall be 
given by any regulation of commerce or revenue to the ports 
of one state over those of another." The short and conclusive 
answer to that objection was that, as the prohibition in ques- 
tion related only to the states and not to the territories, any 
preference that might be given to the port of Louisiana was 
not invalid, because Louisiana was a territory and not a state. ^ 

When for a second time our domain was widened by the ac- Florida pur- 
quisition of Florida, under the treaty with Spain ratified Octo- '^^^^' ^^2°- 
ber 20, 1820, Congress, again refusing to extend the consti- 
tutional guarantees to a territory, gave to the new acquisition 
in 1822 substantially the same form of government provided 
for Orleans in 1804. In the case of the American Ins. Co. v. 356 
Bales of Cotton, ^ the question was presented to the Supreme 
Court whether or no that part of the territorial government 
providing that the judges of the Superior Court of Florida 
should hold their offices for four years conflicted with that pro- 
vision of the Constitution declaring that "the judges of the 
supreme and inferior courts shall hold their offices during good 
behavior." In delivering the opinion. Chief Justice Marshall Tenure of ter- 
said that the Court " should take into view the relation in which "*°"^ J"^s^- 
Florida stands to the United States" ; that territory ceded by 
treaty "becomes a part of the nation to which it is annexed, 
either on the terms stipulated in the treaty of cession, or on 
such as its new master shall impose.''^ He further held that 
the judicial clause in question had no application whatever 
to the organization of territorial courts, because Florida, upon 
the conclusion of the treaty, became a territory of the United 
States, and subject to the power of Congress legislating under 
the territorial clause, and entirely outside of the constitutional 
guarantees which belong to the states alone. 

^ Speaking for the Administra- regulated without any reference to 

tion, Mr. Nicholson of Maryland the Constitution." See Downes v. 

said: "[Louisiana] is in the nature Bidwell, 182 U. S. 255. 
of a colony whose commerce may be * I Peters, 511. 



386 



THE AMERICAN CONSTITUTION 



[Ch. 



Treaty of 
Guadalupe- 
Hidalgo, 1848. 



Webster and 
Clay declare 
Constitution 
belongs to 
states alone. 



Taney in Flem- 
ing V. Page. 



When for a third time our domain was widened by the 
acquisition, in 1848, under the treaty of Guadalupe-Hidalgo, of 
the vast region inhabited by people of mixed races, with laws 
and customs unlike our own, the problem of territorial govern- 
ment became entangled with an effort to extend the limits 
within which slavery could be maintained. In the course of the 
debate that ensued on an amendment to a certain bill offering 
to extend the Constitution and certain laws of the United 
States over the proposed territories of Utah and New Mexico, 
a scene occurred of which Mr. Benton^ gives us the following 
description: "The novelty and strangeness of this proposition 
called up Mr. Webster, who repulsed as an absurdity and an 
impossibility the scheme of extending the Constitution to the 
territories, declaring that instrument to have been made for 
states, not territories ; that Congress governed the territories 
independently of the Constitution and incompatibly with it; 
that no part of it went to a territory but what Congress chose 
to send ; that it could not act of itself anywhere, not even in the 
states for which it was made, and that it required an act of 
Congress to put it in operation before it had effect anywhere. 
Mr. Clay was of the same opinion, and added : ' Now, really I 
must say the idea that, eo instanti, upon the consummation of 
the treaty, the Constitution of the United States spread itself 
over the acquired territory and carried along with it the insti- 
tution of slavery, is so irreconcilable with any comprehension 
or any reason I possess, that I hardly know how to meet it. * " 

In 1850, the year following that in which the foregoing de- 
bate occurred, the Supreme Court delivered its judgment in 
Fleming v. Page,^ a case arising out of an action brought against 
the collector of the port of Philadelphia to recover back cer- 
tain duties on merchandise imported into that port from Tam- 
pico, in Mexico, during the temporary occupation of that place 
by the military forces of the United States. The substance of 
the opinion, delivered by Chief Justice Taney, is as follows: 
"The President acted as a military commander prosecuting a 
war waged against a public enemy by the authority of his gov- 
ernment, and the conquered country was held in possession in 
order to distress and harass the enemy. It did not thereby be- 
come a part of the Union. The boundaries of the United States 
^ Thirty Years' View, ii, 72953. * 9 Howard, 603. 



XII.l OUR COLONIAL SYSTEM 387 

were not extended by the conquest. Tampico was therefore a Tampico a 
foreign port, within the meaning of the Act of Congress passed ^^^^^ ^^" 
on the 30th of July, 1846, and duties were properly levied 
upon goods imported into the United States from Tampico. 
The administrative departments of the government have never 
recognized a place in a newly acquired country as a domestic 
port, from which the coasting trade might be carried on, un- 
less it had been previously made so by an Act of Congress, and 
the principle thus adopted has always been sanctioned by the 
Circuit Courts of the United States, and by this Court." By 
that time the following propositions had become firmly settled 
in the constitutional law of this country: (i) That when terri- Summary of 
tory is subdued by the armies of the United States, it passes ia^_ 
under the despotic war power of the President, as Commander- 
in-Chief, who, in the exercise of that power, is unrestrained by 
the Constitution and the laws of the United States; (2) that 
when territory is thus acquired by conquest, its holding is a 
mere military occupation until, by a treaty of peace, the ac- 
quisition is confirmed ; (3) that when the new acquisition passes 
into a territorial condition, the despotic war power vested in 
the President, as Commander-in-Chief, is superseded by the 
power of Congress, which is equally unlimited, except as to 
such constitutional "provisions as go to the very root of the 
power of Congress to act at all, irrespective of time or place"; 
(4) that until the ceded territory is admitted as a state, it is 
not drawn within the circle of constitutional guarantees which 
apply, in their entirety, to states alone. When in 1879 it again 
became necessary to determine the extent to which the Con- 
stitution applies to a territory, the Supreme Court, in First 
National Bank of Brunswick v. County of Yankton,^ speaking 
through Chief Justice Waite, thus answered :" The territories Chief Justice 
are but political subdivisions of the outlying dominion of the ^^*^'* ^^' 
United States. They bear much the same relation to the Gen- 
eral Government that counties do to the states, and Congress 
may legislate for them as states do for their respective municipal 
organizations. The organic law of a territory takes the place 
of a constitution, as the fundamental law of the local govern- 
ment. It is obligatory on and binds the territorial authorities; 
but Congress is supreme, and, for purposes of this department 
1 loi U. S, 129. 



388 



THE AMERICAN CONSTITUTION 



[Ch. 



Insular Tariff 
cases. 



DeLima v, 
Bidwell. 



Downes v. 
Bidwell. 



Limitations 
on power of 
Congress to 
act at all. 



of its governmental authority, has all the powers of the people 
of the United States, except such as have been expressly or by 
implication reserved in the prohibitions of the Constitution." 

With all the fundamentals thus clearly defined in harmony 
with the past history of the world as to the relation of colonies 
to the constitution of the parent state, there was really no 
occasion for the great forensic contest and subsequent conflict 
among the judges which assumed such large proportions in 
what are known as the Insular Tariff cases, ^ the most import- 
ant of which are DeLima v. Bidwell and Downes v. Bidwell. 
In the first, the question was this: Was the island of Porto 
Rico, after the treaty with Spain for the transfer of sover- 
eignty had been ratified and proclaimed, and prior to any 
action by Congress in regard to the island, a part of the terri- 
tory of the United States, and subject to that provision of 
the Constitution which declares that "all duties, imports and 
excises shall be uniform throughout the United States"? It 
was held that, at the time the duties in question were levied, 
"Porto Rico was not a foreign country, within the mean- 
ing of the tariff laws, but a territory of the United States; 
that the duties were illegally exacted, and that the plaintiffs 
are entitled to recover them back." In the second, the same 
question arose, after the passage, on April 12, 1900, of the 
Foraker Act, which provided for a territorial government in 
Porto Rico and levied a duty upon such products of the 
island as might be brought into the United States. When the 
question of the validity of the duty so imposed arose, it was 
held to be valid, regardless of the uniformity clause of the Con- 
stitution, because, in the opinion of Mr. Justice Brown, who 
delivered the judgment, the Constitution does not, by its own 
force, extend to the possessions of the United States, whether 
created into territories with a regular form of government, or 
existing as unorganized possessions. As a qualification of that 
statement, that ever sane and luminous judge said: "To sus- 
tain the judgment in the case under consideration, it by no 
means becomes necessary to show that none of the articles of 
the Constitution apply to the island of Porto Rico. There is 
a clear distinction between such prohibitions as go to the very 
root of the power of Congress to act at all, irrespective of time 
1 182 U. S. I, 244 (1900). 



colonial 
monopoly. 



XII.] OUR COLONIAL SYSTEM 389 

or place, and such as are operative only 'throughout the United 
States ' or among the several states. Thus when the Constitu- 
tion declares that 'no bill of attainder or ex post facto law shall 
be passed,' and that 'no title of nobility shall be granted by 
the United States,' it goes to the competency of Congress to 
pass a bill of that description. . . . Upon the other hand, 
when the Constitution declares that all duties shall be uniform 
'throughout the United States,' it becomes necessary to inquire 
whether there be any territory over which Congress has juris- 
diction which is not a part of the 'United States,' by which 
term we understand the States whose people united to form 
the Constitution, and such as have since been admitted to the 
Union upon an equality with them." It would seem that such 
expositions leave really nothing for future controversy as to the 
relations existing between our colonies or territories and the 
Constitution, which, in its entirety, belongs to the states alone. 

The statement has been made already that Spain's colonial Spain's 
system, more paternal than that of England, rested on a com- 
mercial policy most irrational and intolerable in its restrictions 
and repressions. Spain retained in her own hands the entire 
trade of her colonies, a monopoly which she guarded with the 
severest penalties. When during the Napoleonic wars she lost 
control of her American possessions, British merchants slipped 
into the prohibited domain and built up a trade of great value. 
That commercial conquest upon the part of Great Britain Britain's 
was seriously imperiled when, in the summer of 1823, the Holy commeraal 
Alliance notified her that, so soon as France should complete imperiled, 
the overthrow of the revolutionary government of Spain, a 
congress would be called for the purpose of terminating the 
revolutionary governments in South America, which had then 
been recognized by the United States but not by Great Britain.^ 
In order to thwart that design, — whose success involved of 
course a surrender to Spain of the monopoly of the valuable 
trade then enjoyed with her emancipated colonies, — Great 
Britain opened a diplomatic negotiation with this country 
out of which grew the doctrine now generally known as the 

^ When in 1825 Canning formally the Peninsula by "calling the New 

recognized the independence of such World into existence to redress the 

governments, his intention is said balance of the Old." Alison, History 

to have been to seek compensation of Europe from the Fall of Napoleon, 

for the preponderance of France in ii, 715 sg. 



390 

Real origin 
of Monroe 
Doctrine. 



THE AMERICAN CONSTITUTION 



[Ch. 



Castlereagb 
superseded by 
Canning; 



his corre- 
spondence with 
Rush, 1823; 



submitted by 
Monroe to 
JefEerson. 



An American 
system defined. 



Monroe Doctrine. The fact is that the attempt made by those 
who claimed the right to exercise a primacy or overlordship 
in the affairs, external and internal, of European states to ex- 
tend that system of interference to American republics forced 
the government of the United States, as the dominant political 
power in this hemisphere, to assert that in itself alone resides 
a primacy or overlordship, which has gradually become as 
well defined in the New World as that of the Concert of 
Europe in the Old. 

Castlereagh, who was regarded as too much in sympathy 
with the Holy Alliance, yielded the direction of England's for- 
eign affairs to Canning, who came forward as an advocate of 
the universal right of self-government, and as an opponent 
of France's invasion of Spain, just in time to deal with the 
momentous question presented by the threat of the Alliance to 
extend its interference to Spain's relations with her colonies 
in South America. In order to deal with that design, so full of 
menace to the interests of English merchants. Canning, in 
the summer of 1823, began to correspond with Mr. Rush, the 
American Minister at London, as to the advantages of a joint 
declaration by Great Britain and the United States against the 
proposed European intervention. So soon as President Mon- 
roe received that correspondence he submitted it to Jefferson, 
then in retirement, with the request that he would advise him 
in the matter. On the 24th of October, Jefferson in his letter 
from Monticello said, among other things, that "the question 
presented by the letters you have sent me is the most moment- 
ous which has been offered to my contemplation since that of 
Independence. That made us a nation ; this sets our compass 
and points the course which we are to steer through the ocean 
of time opening on us. And never could we embark upon it un- 
der circumstances more auspicious. Our first and fundamental 
maxim should be never to entangle ourselves in the broils 
of Europe; our second, never to suffer Europe to intermeddle 
with cis-Atlantic affairs. America, North and South, has a set 
of interests distinct from those of Europe, and peculiarly her 
own. She should, therefore, have a system of her own, separate 
and apart from that of Europe. . . . One nation, most of all, 
could disturb us in this pursuit; she now offers to lead, aid, and 
accompany us in it. By acceding to her proposition we detach 



XII.] 



OUR COLONIAL SYSTEM 



391 



Gulf of Mexico 
and acquisi- 
tion of Cuba. 



her from the bands, bring her mighty weight into the scale of 
free government, and emancipate a continent at one stroke, 
which might otherwise linger in doubt and difficulty. Great 
Britain is the nation which can do us the most harm of any one 
or all on earth, and with her on our side we need not fear the 
whole world. With her, then, we should most sedulously cher- 
ish a cordial friendship, and nothing would tend more to knit 
our affections than to be fighting once more side by side in the 
same cause." 

Then, passing to another branch of the subject confronting Control of 
us at our very doors, he said: "But we have first to ask our 
selves a question. Do we wish to acquire to our own confed 
eracy any one or more of the Spanish provinces? I candidly 
confess that I have ever looked on Cuba as the most interest- 
ing addition which could ever be made to our system of states. 
The control which, with Florida Point, this island would give 
to us over the Gulf of Mexico and the countries and isthmus 
bordering on it, as well as all those whose waters flow into it, 
would fill up the measure of our political well-being. Yet, as I 
am sensible that this can never be obtained, even with her own 
consent, but by war, and its independence, which is our second 
interest (and especially its independence of England), can be 
secured without it, I have no hesitation in abandoning my first 
wish to future chances, and accepting its independence, with 
the peace and friendship of England, rather than its associa- 
tion at the expense of war and her enmity."^ Madison, who Approval of 
was consulted at the same time through Jefferson, gave his Jf^^ison and 
cordial approval to Canning's suggestion,^ and Calhoun, who 
was Secretary of War at the time, declared that he believed 
that the Alliance "had an ultimate eye to us; that they would, 
if not resisted, subdue South America. . . . Violent parties 
would arise in this country, one for and one against them, and 
we should have to fight upon our shores for our institutions." 

Thus advised, President Monroe in his message of December 
2, 1823, said to Congress that "in the wars of the European 
powers, in matters relating to themselves, we have never taken 
any part, nor does it comport with our policy to do so. It is 
only when our rights are invaded or seriously menaced that we 
resent injuries or make preparation for our defense. With the 
1 Jefferson's Works, vii, 315. ~ * Madison's Writings, iii, 339. 



392 



THE AMERICAN CONSTITUTION 



[Ch. 



European sys- 
tem not to be 
extended to 
this hemi- 
sphere. 



No interfer- 
ence with ex- 
isting colonies. 



movements in this hemisphere we are of necessity more im- 
mediately connected, and by causes which must be obvious to 
all enlightened and impartial observers. The political system 
of the allied powers is essentially different in this respect from 
that of America. This difference proceeds from that which ex- 
ists in their respective governments. And to the defense of our 
own, which has been achieved by the loss of so much blood 
and treasure, and matured by the wisdom of their most enlight- 
ened citizens, and under which we have enjoyed unexampled 
felicity, this whole nation is devoted. We owe it, therefore, to 
candor and to the amicable relations existing between the United 
States and those powers to declare that we should consider 
any attempt on their part to extend their system to any por- 
tion of this hemisphere as dangerous to our peace and safety. 
With the existing colonies or dependencies of any European 
power we have not interfered, and shall not interfere. But with 
the governments who have declared their independence and 
maintained it, and whose independence we have, on great con- 
sideration and on just principles, acknowledged, we could not 
view any interposition for the purpose of oppressing them, or 
controlling in any other manner their destiny, by any Euro- 
pean power, in any other light than as the manifestation of an 
unfriendly disposition toward the United States. ... It is im- 
possible that the allied powers should extend their political 
system to any portion of either continent without endanger- 
ing our peace and happiness ; nor can any one believe that our 
Southern brethren, if left to themselves, would adopt it of 
their own accord. It is equally impossible, therefore, that we 
should behold such interposition, in any form, with indiffer- 
ence. If we look to the comparative strength and resources of 
Spain and those new governments, and their distance from each 
other, it must be obvious that she can never subdue them." 

At an earlier stage of his message, in a paragraph (7) far 
removed from the two (48 and 49) from which the foregoing 
extract was taken. President Monroe had expressed himself in 
the same general way in reference to a subject having no con- 
nection whatever with the intervention of the Holy Alliance 
in the affairs of South America. The first declaration — relat- 
ing to fresh acquisitions of territory by European powers in any 
portion of the American continents by occupation or coloniza- 



XII.] OUR COLONIAL SYSTEM 393 

tion — was prompted by a controversy as to unsettled bound- Unsettled 
aries in the Northwest that grew out of a ukase issued by the theNortS?est 
Czar of Russia in September, 1821, in which he had asserted Ukase of Sep- 
exclusive territorial rights from the extreme northern limit of *^™''^'"' ^^^^• 
the continent to the fifty-first parallel of north latitude, by at- 
tempting to exclude foreigners from fishing and navigation for 
the purposes of commerce within an hundred Italian miles of 
the coast down to that parallel. Against that ukase both Great 
Britain and the United States protested because an unsettled 
controversy was then pending between them as to the very 
territory to which the Czar thus laid claim. When Russia pro- 
posed an amicable settlement of the matter, John Quincy J- Q- Adams's 
Adams, then Secretary of State, said to the Russian minister, j^y^jt ^1823 
at a conference held on July 17, 1823, "that we should contest 
the right of Russia to any territorial establishment on this con- 
tinent, and that we should assume distinctly the principle that 
the American continents are no longer subjects for any new 
colonial establishments."^ In the part of the message in ques- 
tion, President Monroe restated the matter in this form: "The 
occasion has been judged proper for asserting, as a principle in 
which the rights and interests of the United States are involved, 
that the American continents, by the free and independent con- 
dition which they have assumed and maintain, are henceforth 
not to be considered as subjects ior future colonization by any 
European powers." Such are the two foundations, relating 
to two entirely distinct subject-matters, of what is generally 
known as the Monroe Doctrine (the joint product of the brains 
of Jefferson and Adams) — a doctrine which has gradually 
reached its present dimensions through more than eighty years 
of persistent development. 

Pending the controversy with Great Britain as to the Oregon 
territory, and in the face of possible intervention by the Euro- President 
pean powers on account of the annexation of Texas, President ^?^'^ message 
Polk, in his message of December 25, 1845, greatly widened 25, 1845. 

* J. Q. Adams's Memoirs, vi, 163. tion. Occupied by civilized nations, 

On July 2, Mr. Adams had written they will be accessible to Europeans 

to Mr. Rush, our minister at Lon- and each other on that footing alone." 

don, that a " necessary consequence For a more complete statement of 

of this state of things will be, that the entire subject, see Taylor, Inter- 

the American continents henceforth national Public Law, vi. 
will no longer be subject to coloniza- 



394 



THE AMERICAN CONSTITUTION 



[Ch. 



Clayton- 
Bulwer 
treaty, 
1850. 



France's 
intervention 
in Mexico. 



Definition of 
Monroe Doc- 
trine com- 
pleted by 
President 
Cleveland. 



the protest of President Monroe against "future colonization 
by any European powers," when he said that "it should be dis- 
tinctly announced to the world as our settled policy, that no 
future European colony or dominion shall, with our consent, 
be planted or established on any part of the North American 
continent." The step backward, taken at the making of the 
Clayton-Bulwer treaty of 1850, — in which the United States 
did enter into an alliance or combination with a European 
power for the settlement of questions connected with interests 
in this hemisphere, — was more than regained when in Decem- 
ber, 1865, it became necessary for the Government of the 
United States to terminate the intervention of France in the 
internal affairs of Mexico. Notice was then given that friend- 
ship with that country must cease, "unless France could deem 
it consistent with her interest and honor to desist from the pro- 
secution of armed intervention in Mexico to overthrow the 
domestic republican government existing there, and to establish 
upon its ruins the foreign monarchy which has been attempted 
to be inaugurated in the capital of that country."* 

Not, however, until a resolute and far-sighted statesman, 
who clearly understood that our marvelous national develop- 
ment entitled us to rank as a world-power, was given the oppor- 
tunity by the boundary controversy between Great Britain 
and the Republic of Venezuela, was the inevitable declaration 
finally made, that the same reasons that impel the Concert of 
Europe to guard the balance of power in the Old World prompt 
the government of the United States to maintain alone its 
primacy in the New. In his special message ^ to Congress of 
December 17, 1895, President Cleveland, after referring to the 
contention of the British prime minister that the Monroe Doc- 
trine had been given "a new and strange extension and devel- 
opment," said that "without attempting extended argument 
in reply to these positions, it may not be amiss to suggest that 
the doctrine upon which we stand is strong and sound, because 
its enforcement is important to our peace and safety as a na- 
tion and is essential to the integrity of our free institutions and 
the tranquil maintenance of our distinctive form of govern- 



^ Mr. Seward, Secretary of State, 
to Mr. Bigelow, Dec. 16, 1865; MSS. 
Inst., France. 



* Messages and 
Presidents, ix, 655. 



Papers of the 



XII.] OUR COLONIAL SYSTEM 395 

ment. It was intended to apply to every stage of our national 
life and cannot become obsolete while our Republic endures. 
If the balance of power is justly a cause for jealous anxiety among Balance 
the governments of the Old World, and a subject for our absolute old WoricT 
non-interference, none the less is an observance of the Monroe Doc- and New. 
trine of vital concern to our people and their government. ... The 
Monroe Doctrine finds its recognition in those principles of in- 
ternational law^ which are based upon the theory that every na- 
tion shall have its rights protected and its just claims enforced." 
The italicized words embody the first scientific statement of the 
real and only ground upon which the Monroe Doctrine can be 
sustained as a matter of international law. The soundness of 
that position Great Britain justly and frankly recognized when 
she conceded the right of arbitration, then asserted by the 
United States, solely by virtue of its primacy or overlordship 
in the New World. ^ It is folly to contend that that primacy as 
it exists to-day is just what it was when originally formulated 
by President Monroe. As "it was intended to apply to every 
stage of our riational life and cannot become obsolete while 
our Republic endures," it has grown with our growth, and 
now stands ready to adapt itself to all future developments. 
The marvel to students of the American Constitution is that 
the upbuilding of the primacy of the United States in the New 
World has been worked out by the pens of Presidents and 
Secretaries of State, — it is purely a creation of the executive 
power. 

Passing as we are under the influence of forces which are 

* ' * The supremacy of a Committee ing : ' ' Frpm the point of view of the 
of States and the supremacy of a sin- United States the arrangement is a 
gle State cannot be exercised in the concession by Great Britain of the 
same manner. What in Europe is most far-reaching kind. It admits a 
done after long and tedious negotia- principle that in respect of South 
tions, and much discussion between American republics the United 
representatives of no less than six States may not only intervene in dis- 
countries, can be done in America putes, but may entirely supersede 
by the decision of one Cabinet dis- the original disputant and assume 
cussing in secret at Washington." exclusive control of the negotiations. 
T. J. Lawrence, The Principles of Great Britain cannot, of course, 
International Law (1898), p. 247. bind any other nation by her action, 

* That the statesmen of Great but she has set up a precedent which 
Britain perfectly understood at the may in future be quoted with great 
time the magnitude of the conces- effect against herself." London 
sion clearly appears from the follow- Times, November 14, 1896. 



396 



THE AMERICAN CONSTITUTION 



[Ch. 



Diplomatic re- 
lations with 
the Orient. 



Our hegemony 
in Central and 
South America. 



Population 
and trade of 
the Orient. 



rapidly making US a part of the growing greatness of the Pacific, 
it is impossible not to perceive that the pens of Presidents and 
Secretaries of State are seriously at work defining our attitude 
toward the diplomacy of the Orient, in which we are already 
deeply involved. When in 1823 Jefferson wrote to Monroe, " I 
candidly confess that I have ever looked on Cuba as the most 
interesting addition which could ever be made to our system 
of states. The control which, with Florida Point, this island 
would give to us over the Gulf of Mexico and the countries and 
isthmus bordering on it, as well as all those whose waters flow 
into it, would fill up the measure of our political well-being" 
— he clearly foresaw that our sphere of influence was soon to 
be extended over the Gulf of Mexico, the Caribbean Sea, "and 
the countries and isthmus bordering on it." If the building of 
the canal was not expressly mentioned, such an event was no 
doubt contemplated by a mind whose prescience was almost 
supernormal. At that time Great Britain, then drawing one 
fourth of her commerce from the West Indies, was a rival at our 
very doors. To-day her fleet has been practically removed 
from the Caribbean Sea. Since the close of the Spanish-Ameri- 
can War, Cuba, Porto Rico, and the Philippines have passed 
under our actual control, while over the whole of Central and 
South America our hegemony has been extended as never be- 
fore. In order to defend the widely-scattered possessions thus 
acquired from Spain, it has become necessary not only to con- 
struct the isthmian canal but to enter into new diplomatic 
understandings that have made the old maxim of "no en- 
tangling alliances" an anachronism. Just before his death. Sir 
William Hunter, a profound student of Asian questions, 
wrote: " I hail the advent of the United States in the East as a 
new power for good, not alone for the island races that come 
under her care, but also in that great settlement of European 
spheres of influence in Asia, which, if we could see aright, forms 
the world problem of our day." 

In estimating the magnitude of that problem, we must re- 
member that more than half of the population of the world are 
of Oriental descent, and Oriental customs of life ; and that of 
that 800,000,000 or 900,000,000 China furnishes 400,000,000, 
India 300,000,000, — their imports being estimated at some 
$2,000,000,000 a year. In that vast and growing trade, about 



XII.] OUR COLONIAL SYSTEM 397 

two thirds of which now comes from Europe, the United 
States is resolved to participate. An acute observer,^ who has 
recently examined conditions on the ground, has well said: 
"Even if we were not in control of the West Indies, and in 
the Philippine Islands, our position as guardians of the Pan- 
ama Canal, and as sponsors for the safety from aggression of 
the South American Republics, and our position on the Pacific 
Ocean, force us to play a part in the East. A nation, like an A nation must 
individual, must grow or die. It is true that our first concern ^°^ °^ ^^' 
is with matters at home. How a man will run, how he will 
think even, depends not a little on the condition of his heart. 
Our progress and prowess in the East depend, as is the case 
with England, upon our moral fibre at home. . . . He travels 
with eyes and ears sealed who does not become convinced 
that this century is not concerned as were the sixteenth and 
seventeenth with religious struggles, as was the eighteenth 
with the rights of man, as was the nineteenth with questions 
of nationality. The twentieth century even now is character- 
ized by a struggle for existence in the field of commerce and 
industry." 

Foremost among the nations that must struggle for commer- Germany 
cial and industrial expansion or perish is the dominant military ^° Japan, 
power of Europe, Germany, with a territory smaller than that 
of Texas and with a population of more than 60,000,000 which 
she can feed for only about two thirds of the year. In the same 
situation is Japan, which lies off the east coast of Asia as the 
British Isles lie off the west coast of Europe, with about the 
same geographical area. Japan has a population of 317 to the 
square mile, while Great Britain, with a smaller area than Col- 
orado, has a density of 470, England alone having a density of 
605. Since the granting of two trading charters, "within the 
period of ten years, under the last of the Tudors and the first 
of the Stuarts," ^ Great Britain has expanded into the British Expansion of 
Empire, which now governs 400,000,000 people occupying a Great Bntam. 
total area of 11,500,000 square miles. Rich as Great Britain is, 
with a yearly governmental expenditure of 1 1,000 ,000 ,000, with 

^ See the lucid article of Mr. teresting statistics. The author has 

Price Collier, entitled " On the Way profited by some of them, 

to India, "in Scribner's Magazine for * See above, p. 380. 
January, 1911, containing many in- 



398 



THE AMERICAN CONSTITUTION 



[Ch. 



Expansion of 
the United 
States. 



The shores 
of the Pacific 
in 1852. 



a national debt of $3,800,000,000, with her birth-rate diminish- 
ing, and her workmen emigrating for lack of employment at 
home, — she cannot for a moment suspend the struggle for ex- 
istence in the field of commerce and industry. If she loses her 
supremacy at sea, and with it the Suez Canal and India, she 
must suffer the fate of Venice, Spain, Holland, or Denmark. 
Next to our own affairs, those of Great Britain are of the deep- 
est concern to us. 

The thirteen states and two territories, founded in the main 
by English settlers on our Atlantic seaboard, began their career 
as a nation with a population of 3,673,572, occupying a total 
area of 843,255 square miles, with the Mississippi River as its 
western boundary. The outcome of the migration which has 
swept westward from that beginning, first to the Pacific Coast 
and then beyond it, is a population now estimated at 101,100,000, 
occupying a total area of 3,747,381 square miles. As late as 
1852 the vast expanse of territory between the Mississippi and 
the Pacific was almost an unknown land. The only states then 
organized within it were Louisiana, Arkansas, Texas, Missouri, 
and California, the last a string of mining-camps with a popu- 
lation of about 90,000. Oregon, Washington, and British Co- 
lumbia contained only a few scattered settlements and trading- 
stations, from which there were practically no exports but furs, 
while Mexico, Central America, and the Pacific States of South 
America, then recently emancipated from Spain, were still 
hampered by internal dissensions, and the traditionally incom- 
petent commercial methods of the old Spanish colonial system. 
The uncertain movements of the whaling-ships around Cape 
Horn were almost the only means of communication between 
Honolulu and the outside world ; the Australian colonies were 
upon the threshold of their career, giving only a slight sugges- 
tion of the mighty development of wealth soon to come ; China 
had very recently been forced to open a few of her ports to for- 
eign commerce ; while Japan, still a sealed mystery, rigorously 
excluded foreigners, and made it a capital offense for any 
native to leave the country. Not until 1857-58 were the three 
ports of Nagasaki, Kanagawa, and Hakodadi opened to for- 
eigners. Except when adventurous traders intruded for the 
purpose of obtaining a few furs in exchange for fire-water and 
trinkets, Alaska and the Siberian coast of Asia were in the un- 



XII.l OUR COLONIAL SYSTEM 399 

disturbed possession of the seal and Eskimo.^ At that juncture, 
— when steamships were still a curiosity in many parts of the 
Pacific, when there were no railroad tracks or telegraph lines 
west of the Mississippi, when trade, commerce, and shipping 
in that quarter were meagre indeed, — a great American states- 
man, destined to exercise an immense influence upon our for- 
eign affairs, foretold in a prophetic speech all that was to come. 
When on July 29, 1852, a motion was made in the Senate of the Mr. Seward's 
United States to proceed to the consideration of a bill "author- P^°P^etic 

, : , . r ^ r SpCCCh, July 

izmg an exploration and reconnoissance of the courses of nav- 29, 1852. 
igation used by whaling-vessels in the regions of Behring's 
Straits, and also of such parts of the China Sea, Straits of Gas- 
par, and Java Sea, as lie directly in the route of vessels pro- 
ceeding to and from China," William H. Seward^ of New York 
said : "The settlement of the Pacific Coast is in a state of sheer 
infancy. . . . Without waiting for perfect or safe channels, 
a strong and steady stream of emigration flows thither from 
every state and every district eastward of the Rocky Mount- 
ains. Similar torrents of emigration are pouring into Cali- 
fornia and Australia from the South American states, from 
Europe, and from Asia. This movement is not a sudden or ac- 
cidental, or irregular, or convulsive one, but it is one for which 
men and nature have been preparing through near four hun- 
dred years. During all that time merchants and princes have 
been seeking how they could reach, cheaply and expeditiously, 
'Cathay,' 'China,' 'the East,' that intercourse and commerce The path to 
might be established between its ancient nations and the newer ^^ ^^*- 
ones of the West. To these objects Da Gama, Columbus, 
Americus, Cabot, Hudson, and other navigators, devoted 
their talents, their labors, and their lives. Even the discovery 
of this continent and its islands, and the organization of so- 
ciety and government upon them, grand and important as 
these events have been, were but conditional, preliminary, and 
ancillary to the more sublime result, now in the act of consum- 
mation — the reunion of the two civilizations, which having ^^yyi"^ 
parted on the plains of Asia four thousand years ago, and hav- tions. 

^ For a larger statement see a ^teax&dinthe. North American Review 

notable article entitled "The Grow- for April, 1895. 
ing Greatness of the Pacific," by * Seethe Congressional Globe, yid 

Lorrin A. Thurston, then Hawaiian Congress, 1st sess., part 3, p. 1975. 
Minister at Washington, which ap- 



400 



THE AMERICAN CONSTITUTION 



[Ch. 



Influence 
on Asia. 



United States 
already in- 
volved in 
Oriental 
problems. 



ing traveled ever afterwards in opposite directions around the 
world, now meet again on the coasts and islands of the Pacific 
Ocean. Certainly no mere human event of equal dignity and 
importance has ever occurred upon earth. It will be followed 
by the equalization of the condition of society and the restora- 
tion of the unity of the human family. ... As for those who 
doubt that this great movement will quicken activity and cre- 
ate wealth and power in California and Oregon, I leave them 
to consider what changes the movements, similar in nature 
but inferior in force and slower in effect, have produced already 
on the Atlantic Coast of America. As to those who cannot see 
how this movement will improve the condition of Asia, I leave 
them to reflect upon the improvements in the condition of 
Europe since the discovery and colonization of America. Who 
does not see, then, that every year hereafter, European com- 
merce, European politics, European thought, and European 
activity, although actually gaining greater force, and Euro- 
pean connections, although actually becoming more intimate, 
will, nevertheless, ultimately sink in importance; while the 
Pacific Ocean, its shores, its islands, and the vast regions 
beyond, will become the chief theatre of events in the world's 
great Hereafter." 

Since that prophecy was made, we have extended our domin- 
ion over large groups of islands in the Pacific Ocean, and our 
diplomatic influence to the mainland beyond. Recently a sug- 
gestion proceeded from Washington that the six great powers 
should control the railway situation in northern and southern 
Manchuria, and on July 4, 1910, Russia and Japan signed an 
agreement providing for "friendly cooperation with a view to 
the improvement of their respective railway lines in Manchuria 
and the perfecting of the connecting services of the said lines, 
and to abstain from all competition prejudicial to the realiz- 
ation of this object." Thus the United States is already in- 
volved in the world problems presented by the awakening 
Orient, where the struggle for existence in the field of commerce 
and industry is being carried on by all of the expanding nations. 
A traveler in the Far East, who has made its problems a spe- 
cial study, wrote thus in 1906: "Recently, in discussing the 
present situation in the Orient with a foreigner long distin- 
guished by his association with events in that part of the world, 



XII.l OUR COLONIAL SYSTEM 40I 

I asked him what in his opinion is the greatest force applicable 
in the readjustment which must follow the war between Russia 
and Japan. 'Public opinion in America and England,' he re- influence of 
plied without hesitation." ^ The two English-speaking demo- ^Ameri*™"" 
cracies — exercising dominion over 15,247,381 square miles, and England, 
occupied by a population estimated at 500,000,000 - — are now 
face to face with one of the gravest problems that has ever 
arisen in the history of civilization. The tremendous arma- 
ments now being prepared by the advancing nations are not 
for mere military display. The necessity that compels them is 
hidden from the eyes of the humane dreamers of the cloister 
who imagine that, by common consent, they may be reduced 
or laid aside. The best prospect for peace lies in a firm alli- 
ance between the two great branches of English-speaking 
peoples, whose moral and physical authority, backed by the 
growing influence of international arbitration, may be able to 
avert a world-wide conflict. Such is the mission confronting 
the statesmen and diplomatists who wield to-day the mighty 
forces vested by the English and American democracies in their 
respective constitutions. 

1 The New Far East, by Thomas F. Millard, 6-7. 



CHAPTER XIII 



INTERSTATE COMMERCE, TRUSTS, AND MONOPOLIES 



Transition 
from individ- 
ualism to col- 
lectivism. 



Flight of the 
founders from 
state power. 



If Savigny was right when he said that law is the natural 
outcome of the consciousness of a people, like their social habits 
or their language, and as such is simply an aspect of the na- 
tional life, then the causes of radical changes in law must be 
sought in corresponding changes in the inner history of the peo- 
ple themselves. Only by that process is it possible to explain 
the transformation in legal ideas that has followed the transi- 
tion in this country from the primitive individualism, in which 
each citizen was surrounded by a wide circle of individual rights 
practically free from the intrusion of state power, to the exist- 
ing condition of collectivism in which the rapidly multiplying 
functions of state power are everywhere intruding and narrow- 
ing the circle of individual rights. As all the world knows, it 
was the Laudian persecution of the Puritans through the ma- 
chinery of the State Church that forced them to " turn to the 
New World to redress the balance of the Old." As the first ter- 
rors of the persecution died down, there was a lull for a while 
in the emigration. But so soon as the pressure of the state de- 
spotism, religious and poHtical, made itself felt again, the "godly 
people in England began to apprehend a special hand of Provi- 
dence in raising this plantation" in Massachusetts; "and their 
hearts were generally stirred to come over." Despite the news 
of hardships and dangers, as years went by and the contest 
grew hotter at home, the number of emigrants rose fast. In a 
single year three thousand new colonists arrived from England ; 
and between the sailing of Winthrop's expedition and the 
meeting of the Long Parliament, that is, within the space of ten 
or eleven years, "two hundred emigrant ships had crossed the 
Atlantic, and twenty thousand Englishmen had found a refuge 
in the West." ^ Thus it was that a large portion of the stern 
and sturdy men who crossed the Atlantic to find homes in the 
wilderness were driven here by a brutal intrusion of state power 
* Green, History of the English People, iii, 1 70-1 71. 



XIILl INTERSTATE COMMERCE 403 

into that circle of individual rights surrounding the citizen 
which should be free from such intrusion. The dread of state 
power thus born was nurtured as time went on by the teach- 
ings of a new school of political philosophers that immediately 
preceded the French Revolution, which drew its raison d'itre 
from the cruelly oppressive intrusion into the life of every in- 
dividual of a state power so systematized as to be omnipresent. Intrusion of 
During the midnight period of monarchy that prevailed from ^^^ ^^^' 
the sixteenth century down to the French Revolution, the legal 
rights of the individual were so narrowed and fettered by the 
paternal power of the state in France, with its banaliies and 
seigneurs justiciers, that "the prying eye of the Government 
followed the butcher to the shambles and the baker to the 
oven." There "the peasant could not cross the river without 
paying to some nobleman a toll, nor take the produce which 
he raised to market until he had bought leave to do so, nor 
consume what remained of his grain till he had sent it to the 
lord's mill to be ground, nor full his cloths on his own works, 
nor sharpen his tools at his grindstone, nor make oil or cider at 
his own press." ^ Out of the explosion caused by that terrible 
system of oppression came what may be called the orgy of The orgy of 
individualism, immortalized by the broad generalizations of the "^ viduaiism. 
French philosophers as to the inherent and inalienable rights 
of man. The French Constitution of 1793 declared that gov- 
ernment is instituted to secure to man the free use of his 
natural and inalienable rights to equality, liberty, security, pro- 
perty. Such paper constitutions, invented by the French as a 
means of drawing a wide circle around the "rights of man" into 
which the state cannot intrude, were rendered vastly more ef- 
fective by the American invention, whereby the judicial power, 
as an avenging angel with a drawn sword, can strike down all 
acts of the state forbidden, expressly or impliedly, by their 
terms. To those who witnessed the political earthquake whose 
centre was in France, the state appeared to be a monster as dan- The state a 
gerous as that of Frankenstein, — a monster whose hands were "tt^ej ^*Jth^ 
to be tied by written constitutions defining what the citizen paper consti- 
regarded as his inalienable rights. tutions. 

"Jefferson had returned from France in 1789 wholly en- 

* See the great argument of the Hon. John A. Campbell in the 
Slaughter-House Cases, 16 Wall, 36. 



404 



THE AMERICAN CONSTITUTION 



[Ch. 



Creed of Jef- 
ferson's party. 



Individualism 
substructure 
of national 
character. 



Words of 
Emerson, 1844. 



grossed by the opening scenes of the French Revolution, and 
personally triumphant in the prospect of the coming success 
of the principles which he had formulated in the Declaration of 
Independence. Very soon after his return he seems to have 
become fixed in the belief that the conflict between government 
by the people and government of the people was to be trans- 
ferred to America also, and that the Hamilton School, under 
the guise of broad construction, was aiming at monarchy." ^ 
As the Republican party of Jefferson matured its creed, it taught 
the mass of the population — largely "agricultural, demo- 
cratic, particularist, devoted to the worship of their separate 
commonwealths, and disposed to look upon the Central or Fed- 
eral Government very much as they had but recently looked 
upon the King " — that the one thing to be dreaded and 
guarded against was state power in any form it might assume. 
Out of such teachings came one of the most ennobling and 
strengthening influences that has ever entered into our national 
life. Just after we had begun to realize that we were Ameri- 
cans and no longer merely English colonists, we were thus 
taught that the law swept around each citizen a wide circle of 
individual rights into which no government, state or federal, 
could intrude except at its peril. The sturdy individualism that 
emerged from such a system became the substructure of a na- 
tional character that received its first impress from the iso- 
lated conditions of life in which it was born. The profound 
modifications that have since occurred are the outcome of the 
intercommunication that has drawn us nearer to each other 
and to the outer world. In 1844 — just after that force had 
manifested itself in the establishment of lines of swift ocean 
steamers to Europe and in the extension of railways into the 
West — Emerson said : "We in the Atlantic States, by position, 
have been commercial, and have imbibed easily an European 
culture. Luckily for us, now that steam has narrowed the At- 
lantic to a strait, the nervous, rocky West is intruding a new 
and continental element into the national mind, and we shall 
yet have an American genius. . . . We cannot look on the free- 
dom of this country, in connection with its youth, without a 
presentiment that here shall laws and institutions exist on some 

1 Johnston, American Political History, 1763-1876, part i, pp. 203, 207. 
(Woodburn ed.). 



XIIL] INTERSTATE COMMERCE 405 

scale of proportion to the majesty of Nature. To men legislat- 
ing for the area between the two oceans, betwixt the snows and 
the tropics, somewhat of the gravity of Nature will infuse it- 
self into the code."^ There is nothing in that brilliant para- 
graph to indicate that Emerson foresaw that the mighty forces 
of intercommunication to which he refers, and which had be- 
gun already to draw the West closer to the East, and both to 
the great European world beyond, were soon to bring about 
a transition from the individualism, born of the freedom and 
isolation of our youth, to a collectivism through which primi- 
^tive conditions have been entirely transformed. 

Even a casual observer of existing conditions in our national State power 
life cannot fail to perceive that we are in the midst of an age of a°delivCTer ^ 
collectivism in which the functions of government, state and 
federal, multiply as the powers of the state are invoked for the 
protection of the individual against the vast corporate com- 
binations arrayed against him. State power, no longer dreaded 
as a monster, is now hailed as the only deliverer strong enough 
to secure to the isolated individual that equality of opportun- 
ity supposed to be guaranteed to him by the Constitution and 
the laws. The practical result of the change is that as the func- 
tions of the state multiply, the circle of individual rights that 
once surrounded the individual as a barrier against state in- 
trusion has been seriously narrowed at the invitation of the 
individual himself. A profound jurist and philosopher who has 
lately undertaken to deal with the results of this revolution, 
which has changed and is changing the entire aspect of Ameri- 
can society, says: " It is no longer the preservation of a strong 
and independent individualism that is the object of solicitude. 
It is the creation of a state of dependence of the individual Dependence 
for his safety on the state. . . . Here, as fully as in Europe, "aUn th^^*^' 
in the view of the optimist at least, orderly cooperation is the state, 
rule of social life which modern legislation is seeking to en- 
force. It has not waited for a change in our constitutions. It is 
content to reinterpret them." ^ Therein we are reminded that 
the manufacturer, who finds his field of activity contracting, 

^ " The Young American," lee- * Judge Simeon E. Baldwin, The \ 

ture before the Mercantile Library Narrowing Circle of Individual Rights, ' 

Association, Boston, February 7, heretofore quoted, p. 5. See also pp. 

1844. Works, i, 369-370. 7-8. 



406 THE AMERICAN CONSTITUTION [Ch. 

Illustrations, cannot distill or brew in one state and cannot make a cigarette * 
in another; that the employer, who could once discharge those 
who did not vote for his candidate, is now punished by the state 
if he dares to do so ; that the public official, who was once free to 
take an active part in politics, is subject to removal for such 
activity; that a man's house, once subject to seizure, after just 
compensation, for the purposes of government, may now be 
appropriated for a band-stand, a memorial site, a hospital, a col- 
lege, a freelibrary ; 2 that a farmer, who once could plant and till 
his land as he would, is now liable to have it invaded by an 
official who may uproot the trees in his orchard and leave him 
without remedy if the state deems such action necessary for 
the public welfare ; ^ that the owner of a wood lot, who was for- 
merly free to cut it when he pleased and as he pleased, may now 
be ordered by the legislature to refrain from cutting the whole 
or a part of the natural growth for a period of years, whenever 
such a course is deemed to be for the greatest good of the great- 
. est number ; * that the owner of land from which comes oil or 
1 natural gas or artesian water may be compelled, on the one hand, 
I to guard against waste, and on the other to refrain from in- 
j creasing the natural flow to the prejudice of his neighbors ; ^ 
that the riparian proprietor on streams not navigable may be 
I compelled in many states to submit to the flooding of his lands 
by others, to create water power for them to put to milling or 
manufacturing purposes, while his fishing rights may be cur- 
tailed or perhaps denied for years, in order to replenish the 
stream with more fish for others to catch and eat;® that a gra- 
zier or butcher, who could formerly use his meat products as he 
saw fit, may now be punished as a criminal should he use his 
tallow to make a cheap substitute for butter ; ^ that the man who 
could once educate his children as he pleased, or not at all, may 

^ Iowa Code, sec. 5006; Act of S. 190; Manufacturers' Gas Co. v. 

Feb. 28, 1905, of Indiana; State v. Indiana Gas Co., 155 Ind. 467. Simi- 

Lowry, 166 Ind. 372, 77 Northeast- lar statutes have been upheld in re- 

ern, 728. ference to the use of water from arte- 

* United States v. Gettysburg sian wells. Ex parte Elam, 152 Cal., 
Railway Co., 160 U. S. 668. 91 Pac. 811. 

' State V. Main, 69 Conn. 23, 36, ' Freund on the Police Power, 

37, 26 L. R. A. 673. sec. 419. 

* Opinion of the Justices, — Maine, ^ Powell v. Pennsylvania, 127 U. S. 
— 69 Atlantic, 626. 678. 

8 Ohio Oil Co. V. Indiana, 177 U. 



XIII.] INTERSTATE COMMERCE 407 

now be compelled by the state to educate them in a certain 
way; in obedience to the state's command he sends them to a 
public school, where it may refuse to receive them unless they 
are submitted to vaccination, although he may regard it as 
unnecessary and dangerous ; ^ that the man who could once con- 
template marriage, with his free choice untrammeled by con- 
siderations of personal health, may now be forbidden by the 
state, under heavy penalties, from marrying an epileptic or one 
of feeble mind ; ^ that the man who could once dispose of his es- 
ta,te by will, with few limitations, provided he was not grossly 
unfair to his next of kin, must now submit when the state 
demands a share for itself, and one that is to be increased pro- 
gressively with the magnitude of the inheritance. 

"The artificial person has lost more even than the natural Field of cor- 
person. Its field of action is continually being circumscribed ; por^te action 

• r • • 1, 1 . 1 1- • • narrowed. 

Its manner 01 action continually subjected to new hrmtations. 
. . . The individual laborer has also been often treated by our 
legislators like a ward incapable of protecting his own inter- 
ests. The number of hours for which he can agree to work in 
a day have been cut down, and his liberty of contract in many 
other directions circumscribed.^ On the other hand, the power Organized 
of the state has often been exerted to depress that of organized ^^^°^' 
labor. It has regulated and, under some circumstances, for- 
bidden strikes. It has forbidden boycotts. It has forbidden 
(though it know it not) combinations of labor in different 
states in restraint of commerce between those states. But 
there is no time to multiply references to a kind of legislation 
with which every man before me is familiar, and in shaping 
which many of whom have had a part. It is the age of col- The age of 
lectivism. The functions of the state multiply. Its circle of collectivism, 
activities expands, and the circle of activities around each 
private individual is correspondingly reduced." ^ When we see 
how such profound organic changes have been wrought 
through the silent operation of forces that sweep swiftly on 

* Morris V. Columbus, 102 Ga. ' See N. Y. Labor Law of 1906; 

792, 42 L. A. R. 175. As by the People v. Williams Engineering Co., 

Kentucky Act of March 22, 1904. 85 Northeastern, 1070; William 

' 2 Howard on Matrimonial In- Adair v. United States, October 

stitutions, 400, 477, 480; Gould v. Term, 1907. 

Gould, 78 Conn. 242, 61 Atlantic, * The Narrowing Circle of Indi- 

604. vidual Rights, 8-9. 



4o8 



THE AMERICAN CONSTITUTION 



[Ch. 



Lecky's mis- 
apprehension. 



Growing power 
of American 
Constitution. 



Causes of 
transition from 
individualism 
to collectivism. 



regardless of our cumbrous and impracticable plan of consti- 
tutional amendment, it is hard to read, without a smile, the 
following misguided observations: "An appetite for organic 
change is one of the worst diseases that can affect a nation. 
All real progress, all sound national development, must grow 
out of a stable, persistent, national character, deeply, influ- 
enced by custom and precedent and old traditional reverence, 
habitually aiming at the removal of practical evils and the 
attainment of practical advantages, rather than speculative 
change. Institutions, like trees, can never attain their matur- 
ity or produce their proper fruits if their roots are perpetu- 
ally tampered with. In no single point is the American 
Constitution more incontestably superior to our own than in 
the provisions by which it has so effectually barred the path 
of organic change that the appetite for such change has almost 
passed away."^ No careful student of the American Constitu- 
tion, who knows anything of its history or of its practical work- 
ings, could possibly have been deceived by the fancy that or- 
ganic change has been barred by our peculiar system of amend- 
ment, or that "the appetite for such change" has been lost by 
a nation which, within a century, has passed through more 
organic changes than any other in history in the same length 
of time. If our Constitution really suffered from the lack of 
growing power Mr. Lecky has falsely attributed to it, it would 
have gone to wreck long ago ; in a process of rapid transition 
it has been able to survive only through its marvelous elas- 
ticity. The growing and expanding power of the American 
Constitution has proved itself to be quite equal to that of the 
English. If it has not an omnipotent Parliament whose enact- 
ments can, at critical moments, cut it away from the past, it 
has its own unique creation, the omnipotent Supreme Court, 
which is always at work preparing the way for change by 
gradually readjusting organic relations. 

In explaining the causes that have brought about the transi- 
tion from individualism to collectivism, from a state of things 
in which the individual lived practically free from the intru- 
sion of state power to a new condition in which the multiply- 
ing functions of the state are narrowing the circle of individual 
rights, — Judge Baldwin has attempted to reduce them to 
^ Democracy and Liberty, i, 153, 154. 



XIILJ INTERSTATE COMMERCE 409 

two. "The first of these," he says, "was the Civil War; the 
second was the Philosophy of Evolution. The Civil War had 
shown what men massed together in compact organization 
could do; and how little, in comparison, could be effected by 
individual exertion. It had shown how in every state a polit- 
ical majority could be scattered, suppressed, annihilated. It 
had shown that munitions and supplies such as armies de- 
manded could only be furnished by great combinations of capi- 
tal and labor. . . . As the Civil War was drawing near, Darwin 
and Wallace brought before the world the philosophy of evolu- 
tion. It put the Creator of man in a new light." ^ Complete 
and exact as is the picture drawn by this large thinker of the re- 
sults so far brought about by the transition now going on in this 
country from individualism to collectivism, it is impossible to 
accept as adequate the causes to which he traces the event. As 
the real causes are neither local nor accidental, they must be 
discovered beneath a vast world-movement that now embraces 
America as well as Europe. Their beginnings must be found in A worid-move- 
the development of the great industrialism which, after a long Y^^% embrac- 

•^ o ' o jjjg Europe and 

period of preparatory growth, began to reach its culminating America. 
point with the inventions and technical improvements, with 
the application of steam and the rise of the factory system in 
England, towards the close of the eighteenth century. Through 
the results of that industrial revolution, which now envelops 
the civilized world, large aggregations of capital have so ap- 
plied the pressure of the competition of the large industry as to 
crush out the small capitalist, and to organize the working pro- 
ducers as an army of drilled wage-laborers in vast factories 
and workshops. Mr, Bryce, with unerring insight, clearly per- 
ceived the effects of the collectivism that has arisen out of that 
world-wide industrial revolution upon the individualism of 
this country, at a time when those effects were not so apparent 
as they are to-day. Twenty-two years ago he wrote: "The Mr. Bryce'3 
hundred years which have passed since the birth of the Repub- ^^^ ^° ^^^^' 
lie have, however, brought many changes with them. Individ- 
ualism is no longer threatened by arbitrary kings, and the ram- 
parts erected to protect it from their attacks are useless and 
grass-grown. If any assaults are to be feared, they will come 
from another quarter. New causes are at work in the world 
1 TTie Narrowing Circle of Individual Rights, 2-3. 



410 



THE AMERICAN CONSTITUTION 



[Ch. 




Triumphs 
of physical 
science. 



Unlimited 
competition 
too strong for 
the weak. 



Democracies 
of America 
eager for state 
interference. 



Americans 
charged with 
having no 
theory of the 
state. 



tending not only to lengthen the arms of government, but to 
make its touch quicker and firmer. Do these causes operate in 
America as well as Europe? and if so, does America, in virtue 
of her stronger historical attachment to individualism, op- 
pose a more effective resistance to them? I will mention a few 
among them. Modern civilization, in becoming more complex 
and refined, has become more exacting. It discerns more bene- 
fits which the organized power of government can secure, and 
grows more anxious to attain them. Men live fast, and are 
impatient of the slow working of natural laws. The triumphs 
of physical science have enlarged their desires for comfort, and 
shown them how many things may be accomplished by the 
application of collective skill and large funds which are be- 
yond the reach of individual effort. . . . Unlimited competition 
seems to press too hardly on the weak. The power of groups of 
men organized by incorporation as joint-stock companies, or 
of small knots of rich men acting in combination, has developed 
with unexpected strength in unexpected ways, overshadowing 
individuals and even communities, and showing that the very 
freedom of association which men sought to secure by law 
when they were threatened by the violence of potentates may, 
under the shelter of the law, ripen into a new form of tyranny. 
And in some countries, of which Britain may be taken as the 
type, the transference of political power from the few to the 
many has made them less jealous of governmental authority. 
The government is now their creature, their instrument — why 
should they fear to use it? They may strip it to-morrow of 
the power with which they have clothed it to-day. . . . The 
new democracies of America are just as eager for state inter- 
ference as the democracy of Britain, and try their experi- 
ments with even more light-hearted promptitude. No one 
need be surprised at this when he reflects that the causes which 
have been mentioned as telling- on Europe, tell on the United 
States with no less force. Men are even more eager than in 
Europe to hasten on to the ends they desire, even more impa- 
tient of the delays which a reliance on natural forces involves, 
even more sensitive to the wretchedness of their fellows, and 
to the mischiefs which vice and ignorance breed." ^ Then, after 
declaring that "the Americans have no theory of the state and 
^ The American Commonwealth (3d ed.), ii, 539-542. 



XIII.] INTERSTATE COMMERCE 411 

take a narrow view of its functions," ^ Mr. Bryce proceeds to 
say that " they have grown no less accustomed than the EngUsh I 
to carry the action of government into ever-widening fields. 
Economic theory did not stop them, for practical men are proud 
of getting on without theory. The sentiment of individualism 
did not stop them, because state intervention has usually taken 
the form of helping or protecting the greater number, while 
restraining the few." ^ 

And here the fact should be emphasized that this world- A swelling vol- 
tendency to lengthen the arms of government and to extend JT^ °^ '^^^ 
them into ever-widening fields has of late years so swelled the 
volume of legislation that the output has been incomparably 
greater, not only absolutely, but in proportion to the population 
of the civilized nations, than in any previous age. This country 
is certainly contributing its full quota to the general result. 
The growth of legislative business in Congress appears upon 
the face of the following table, which sets forth by decades the 
total number of bills introduced into the two Houses from 
the First Congress up to and including the Sixty-first: — 

BILLS introduced' 



Congress 


House 


Senate 


Total 


First 


143 


46 


189 


Tenth 


173 


54 


227 


Twentieth 


462 


99 


561 


Thirtieth 


814 


485 


1299 


Fortieth 


1460 


648 


2108 


Fiftieth 


12,664 


4000 


16,664 


Sixty-first 


33.015 


10,906 


43-921 



For many years the effort to lengthen the arms of state su- Subjection 
pervision has been stimulated in this country by the imperious power^to^state 
necessity for curbing the power of groups of men organized by control. 

^ In refuting that charge from an- an impression as this the passing 

other quarter, Judge Baldwin has tourist, who picks up the wrong 

well said: "A recent English writer book and asks the wrong man for 

[H.G.Wells, The Future in America, information, might not unnaturally 

153] has asserted that one great get. But it belongs to a long past 

fault of the typical American of to- state of things." The Narrowing 

day is that he has no sense of the Circle of Individual Rights, 5. 

state; no perception that his own ^ The American Commonwealth 

personal employment and activities (3d ed.), ii, 539-542. 

are constituents in a large collective ' See the author's article on The 

process, which affects other people Speaker and his Powers in the North 

and indeed the world forever. Such American Review for October, 1888. 



412 



THE AMERICAN CONSTITUTION 



ICh. 



Dartmouth 
College case, 
1819. 



A charter 
a contract. 



An important 
modification. 



incorporation as joint-stock companies, or of small groups of 
rich men acting in combination, with such unexpected strength 
and in such unexpected ways as to overshadow individuals and 
even communities, thus demonstrating that "the very freedom 
of association which men sought to secure by law when they 
were threatened by the violence of potentates may, under the 
shelter of the law, ripen into a new form of tyranny." The 
greatest obstacle in the way of subjecting corporate power in 
this country to supervisory state control has arisen out of the 
famous judgment delivered in 1819 in the Dartmouth College 
case,^ in which the actual controversy turned upon the ques- 
tion whether the charter of the college was a grant of political 
power which the state could revoke or modify at pleasure, or 
a contract for the security and disposition of property be- 
stowed in trust for charitable purposes. It was held that the 
act of government, whether it be an act of the Crown or of the 
Legislature, which creates a corporation, is a contract between 
the state and the corporation, and that all the franchises, pow- 
ers, and benefits conferred by the charter become, when ac- 
cepted by the corporation, contracts within the constitutional 
clause. "This is plainly a contract," said Marshall, C. J., "to 
which the donors, the trustees, and the Crown (to whose rights 
and obligations New Hampshire succeeds) were the original 
parties. It is a contract for the security and disposition of pro- 
perty. It is a contract on the faith of which real and personal 
estate have been conveyed to the corporation. It is then a con- 
tract within the letter of the Constitution and within its spirit 
also." 

The first important modification was made in the case of 
The Charles River Bridge v. The Warren Bridge ^ (1837), in 
which it was held that the courts will insist upon the existence 
of an express contract by the state with a corporation, when 
relief is sought against subsequent legislation, in order to guard 
against the evils flowing from too sweeping an abdication of 
sovereign powers by implication. Despite Chief Justice Waite's 
assertion in Stone v. Mississippi ' (1880), that the doctrines 
announced in the Dartmouth College case "have become so 
imbedded in the jurisprudence of the United States as to make 

1 Dartmouth College v. Wood- * 11 Peters, 420. 

ward, 4 Wheat. 518. » loi U. S. 814. 



XIII.l INTERSTATE COMMERCE 413 

them, to all intents and purposes, a part of the Constitution it- 
self," the fact remains that in that very case the Court held that 
no legislature can curtail the rights of its successors to make 
such laws as they may deem proper in matters involving the 
police power, which extends to all subjects affecting the pubHc Police power 
health or the public morals. In the words of the Court, "the ^^^epted. 
power of governing is a trust committed by the people to 
the government, no part of which can be granted away. The 
people, in their sovereign capacity, have established their agen- 
cies for the preservation of the public health and the public 
morals, and the protection of public and private rights. These 
several agencies can govern according to their discretion, if 
within the scope of their general authority, while in power, but 
they cannot give away or sell the discretion of those that are to 
come after them, in respect to matters the government of which, 
from the very nature of things, must 'vary with varying cir- 
cumstances.' . . . The contracts which the Constitution pro- 
tects are those that relate to property rights, not governmental." "Property 
Thus the protection of the contract clause of the Constitution ^^^^^ "°^* 
was withdrawn from that large class of contracts falling within 
the domain of the police power, whose limits are continually 
widening as the judicial mind perceives the necessity for such 
an extension. In Holden v. Hardy,^ the extent of the police Holdenr. 
power was ably defined by Mr. Justice Brown, who, after say- -^"^y- 
ing that "this power, legitimately exercised, can neither be 
limited by contract nor bartered away by legislation," held 
that a state statute limiting the period of employment of work- 
ingmen in underground mines, or in the smelting, or reduction 
or refining of ores or metals, to eight hours per day and making 
its violation a misdemeanor, is a valid exercise of the power 
of the state. 

Walter Bagehot has said that "a constitution is a collection Three over- 
of political means for political ends, and if you admit that any worked parts 
part of a constitution does no business, or that a simpler ma- tution. 
chine would do equally well what it does, you admit that this 
part of the constitution, however dignified or awful it may be, 
is nevertheless in truth useless." ^ While it cannot be said that 
any part of our Federal Constitution "does no business," it can 
be affirmed that there are three of its organs that are now 
^ 169 U. S. 366. * The English Constitution, 4-5. 



414 



THE AMERICAN CONSTITUTION 



ICh. 



Section i, 

Fourteenth 

Amendment. 



Contract 
clause. 



Commerce 
clause. 



Marshall's 
dream in 
Cohens v. 
Virginia. 



doing so much more than any others that each stands forth as 
a distinct force incased in a distinct and growing literature of 
its own. Around the first section of the Fourteenth Amend- 
ment, by which the centre of gravity of the Constitution was 
shifted, the judges and text-writers have built up a body of 
learning whose essence has been briefly summarized already.^ 
Around the contract clause, which provides that no state shall 
pass any "ex post facto law, or law impairing the obligation of 
contracts," an older literature has grown up whose beginnings 
are to be found in the Dartmouth College case. Around the 
third and last force, known as the commerce clause, which vests 
in Congress the power "to regulate commerce with foreign na- 
tions, and among the several states, and with the Indian tribes," 
a literature is developing, next to be considered, whose begin- 
nings are to be found in the famous case of Gibbons v. Ogden,^ 
in which the power of Congress to regulate commerce was first 
defined. It is no exaggeration to say that the three streams of 
judge-made law which have been for a long time flowing from 
the Supreme Court into our national life through the channels 
just described have been and are the unifying and systematizing 
forces which have made a real national unity possible. Through 
their reciprocal action has been realized Marshall's dream: 
"That the United States form, for many and for most import- 
ant purposes, a single nation has not yet been denied. In war 
we are one people. In making peace we are one people. In all 
commercial relations we are one and the same people. In many 
other respects the American people are one. And the govern- 
ment which is alone capable of controlling and managing their 
interests in all these respects is the government of the Union. 
It is their government, and in that character they have no other. 
America has chosen to be, in many respects, and to many pur- 
poses, a nation; and for all these purposes her government is 
complete; to all these objects it is competent. The people have 
declared that in the exercise of all powers given for these objects 
it is supreme. It can, then, in effecting these objects, legiti- 
mately control all individuals or governments within the Amer- 
ican territory. The constitution and laws of a state, so far as 
they are repugnant to the Constitution and laws of the United 
States, are absolutely void. These states are constituent parts 
1 See above, p. 348 sg. * 9 Wheaton, i. 



XIII.l INTERSTATE COMMERCE 415 

of the United States. They are members of one great empire, 
— for some purposes sovereign, for some purposes subordin- 
ate." 1 

At the proper place emphasis was given to the fact that the Evolution of 
meeting of the Federal Convention of 1787 was the outcome of ^ause"™^'^'^ 
the meeting in the year before of the Commercial Convention 
at Annapolis, called "to take into consideration the trade of 
the United States; to examine the relative situation of the trade 
of said states; to consider how far a uniform system in their 
commercial regulations may be necessary to their common in- 
terests and their permanent harmony." ^ The two overshadow- 
ing motives that brought about the making of the existing Con- 
stitution are to be found in the effort to create a federal assem- 
bly (i) with the independent power to tax; (2) with the power 
to regulate trade, foreign and domestic. How perfectly Charles 
Pinckney appreciated that fact is manifest from his draft, which Pinckney draft, 
provides: "Article VI, The Legislature of the United States 
shall have power to lay and collect taxes, duties, imposts, and 
excises ; to regulate commerce with all nations, and among the 
several states." In the draft made for use in the Committee of 
Detail, Randolph wrote among the legislative powers, "2. to 
regulate commerce," and to that Rutledge added the words, 
"both foreign and domestick," and later added, as a marginal 
memorandum, the words, "Indian affairs." The committee re- 
ported the subject in the following language: "to regulate com- 
merce with foreign nations, and among the several states," 
which was approved by the Convention on August 16, without Action of 
discussion. When on August 29, Charles Pinckney moved to Convention, 
provide that "no act of the legislature for the purpose of regu- 
lating the commerce of the United States with foreign powers, 
or among the several states," should be passed without the 
assent of two thirds ^ of each House, the proposal was defeated. 
The additional words, "and with the Indian tribes," were not 
added until September 4, on motion of the Committee on Un- Additional 
finished Portions. When during the discussion on the 15th, of words, Sept. 4. 
the prohibition on the states from laying imposts, tonnage, etc., 
without the consent of Congress, Gouverneur Morris expressed 

* Cohens v. Virginia, 6 Wheaton, ' For Pinckney's speeches, see 
264. Moore's American Eloquence, i, 366, 

* See above, p. 165 sg. 367. 



4i6 



THE AMERICAN CONSTITUTION 



[Ch. 



Gibbons ». 
Ogden, 1824, 



Monopoly 
backed by state 
power yields 
to federal 
power. 



the opinion that the states were not restrained by the Consti- 
tution from laying tonnage duties, Madison said that depended 
on the extent of the power to regulate commerce, which is a 
"vague term, but seems to exclude this power of the states." * 
When in 1824 the time came for the Supreme Court to con- 
strue the commerce clause in the famous case of Gibbons v. 
Ogden,2 it appeared that Chancellor Kent had granted an in- 
junction, sustained by New York's highest appellate court, re- 
straining Gibbons from navigating the Hudson River by steam- 
boats only licensed for the coasting trade under an Act of Con- 
gress, on the ground that he was thereby infringing the exclu- 
sive right granted by the State of New York to Robert Fulton 
and Livingston, and by them assigned to Ogden, to navigate all 
the waters of the state with vessels moved by steam. Thus it 
came to pass that on the very threshold of this great subject 
federal power, as the representative of individualism, met the 
potent outcome of the new industrialism which, with its inven- 
tions and technical improvements advanced by the applica- 
tion of steam, began to reach its culminating point toward the 
close of the eighteenth century. The claim in favor of mono- 
poly, backed by state power, went down before a judgment 
holding that Congress had exclusive authority to regulate com- 
merce in all its forms, on all the navigable waters of the United 
States, including bays, rivers, and harbors, free from monopoly, 
restraint, or interference by state legislation ; that the term com- 
merce meant, not only trafific, but intercourse; that it included 
navigation ; therefore the power to regulate commerce included 
the power to regulate navigation. It was admitted that it did 
not include commerce purely internal ; and the point was left 
undecided whether the power of Congress to regulate commerce 
was exclusive only when exercised, or whether a state might ex- 
ercise it in the absence of action by Congress. Thus was estab- 
lished "that freedom of commerce between the states," which, 



* Cf. Meigs, The Growth of the 
Constitution, 135-138. 

* 9 Wheaton, i. Wirt wrote to a 
friend: "To-morrow week will come 
on the great steamboat question 
from New York. Emmett and Oak- 
ley on one side, Webster and myself 
on the other. Come down and hear it. 
Emmett's whole soul is in the case, 



and he will stretch all his powers. 
Oakley is said to be one of the first 
logicians of the age; as much a Pho- 
cion as Emmett is a Themistocles, 
and Webster is as ambitious as Caesar. 
He will not be outdone by any man 
if it is within the compass of his 
power to avoid it." Kennedy's Life 
of Wirt, ii, 142. 



XIIL] INTERSTATE COMMERCE 417 

in the words of Mr. Justice Brewer, "perhaps more than any 
one thing, has wrought into the minds of the people the great 
thought of a single controlling nationality." 

When in 1827 arose the case of Brown v. Maryland,^ involv- Brown v. 
ing the regulation of foreign commerce, and the power of a 1827!^^"^ 
state to interfere with it through taxation, it was held "that 
when the importer has so acted upon a thing imported that it 
has become incorporated and mixed up with the mass of pro- 
perty in the country, it has perhaps lost its distinctive char- 
acter as an import, and has become subject to the taxing power 
of the state ; but while remaining the property of the importer 
in his warehouse in the original form or package in which it was 
imported, a tax upon it is too plainly a duty on imports to 
escape the prohibition in the Constitution." In 1847 arose the License cases. 
License cases, ^ in the first two of which the construction of the ^ ^'^' 
commerce clause was involved with the question whether, in 
the presence of an Act of Congress authorizing the importation 
from foreign countries of wines and spirits, a state might as- 
sume to prohibit or regulate their sale at retail ; and in the last 
with the question whether, in the absence of an Act of Congress 
to regulate such importation, a state might prohibit by law the 
sale of liquor imported from another state. All of the state 
laws under review were held to be constitutional because not in 
conflict with any Act of Congress. In the first two cases Chief 
Justice Taney contended that the state laws were so framed as 
to act upon the article after it had passed the line of foreign 
commerce in the hands of the dealer. In the last, a diversity 
of opinion arose as to the question whether, in the absence of 
an Act of Congress regulating commerce between the states, all 
state laws on the subject were null and void. In other words, 
whether the mere grant of power to Congress could be con- 
strued as an absolute prohibition of the exercise of any power 
over the same subject by the states. In the opinion of the Chief Opinion of 
Justice, despite such a grant, "the state may, nevertheless, for -paney **^ 
the safety and convenience of trade, or for the protection of the 
health of its citizens, make regulations of commerce for its own 
ports and harbors, and for its own territory ; and such regula- 
tions are valid, unless they come in conflict with the laws of 

* 12 Wheaton, 419. Fletcher v. Rhode Island, Peirce v. 

• Thurlow V. Massachusetts, New Hampshire, 5 Howard, 504. 



4i8 



THE AMERICAN CONSTITUTION 



[Ch. 



Passenger 
cases, 1849. 



Fxclusive 
control by 
Congress. 



Pilots and 
pilotage. 



Congress." The decision in Peirce v. New Hampshire was, 
however, distinctly overruled in Leisy v. Hardin,^ known as 
the Original Package case, in which it was held that, as the 
grant of power to regulate commerce among the states is 
exclusive, "the states cannot exercise that power without the 
assent of Congress ; and, in the absence of legislation, it is left 
to the courts to determine when state action does or does not 
amount to such exercise, or, in other words, what is or is 
not a regulation of such commerce." In Smith v. Turner and 
Norris v. Boston, known as the Passenger cases ^ (1849), the 
construction of the commerce clause of the Constitution was 
again involved. The precise question presented was whether 
that clause was violated by a law of the State of New York 
imposing a tax upon the masters of vessels arriving from a 
foreign port, for each steerage passenger and each cabin 
passenger, and upon the masters of coasting vessels for each 
passenger. The Court was thus again called upon to deter- 
mine whether the power to regulate commerce was vested 
exclusively in Congress ; and if so, whether a tax upon persons 
was a regulation of commerce. The result was that five judges, 
opposed by four, declared the laws null and void, in opinions 
which disclosed a marked conflict of view even among the 
judges who united in the prevailing opinion. Such conflicts 
may now be considered as removed by more recent decisions, 
in which it has been held in substance that the regulation of 
foreign commerce is exclusively within the control of Congress, 
and that no state can attempt its regulation even though there 
be no Act of Congress in existence with which such a regula- 
tion would conflict.' In Cooley v. Port Wardens * a Pennsyl- 
vania statute regulating pilots and pilotage, and providing that 
a vessel neglecting or refusing to take a pilot should pay and 
forfeit certain sums to a society for the relief of pilots, was held 
not to be in conflict with the article of the Federal Constitu- 
tion prohibiting states from imposing imposts and duties on 
imports, exports, and tonnage, because those subjects are dis- 



» 135 U. S. 100 (1889). 

* 7 Howard, 283. 

» Wabash, St. L. & P. R. Co. v. 
Illinois, 118 U. S. 557; Fargo v. 
Michigan, 121 U. S. 230; McCall v. 
California, 136 U. S. xio. 



* 12 Howard, 300; Huus v. New 
York & P. R. SS. Co., 182 U. S. 393; 
Homer Ramsdell Transp. Co. v. La 
Compagnie Generale Transatlan- 
tique, 182 U. S. 414. 




XIII.] INTERSTATE COMMERCE 419 

tinct from fees and charges for pilotage, and from the penal- 
ties by which commercial states enforce their pilotage laws. In 
1877, the Supreme Court, in citing and still further develop- 
ing the principles announced in Gibbons v. Ogden fifty-three 
years before, held in Pensacola Teleg. Co. v. Western Union 
Teleg. Co.^ that a telegraph company bears the same relation 
to commerce as a carrier of goods, and that the powers of Con- 
gress are not confined to the instrumentalities of commerce 
known of or in use when the Constitution was adopted. "The 
powers of Congress," said the Court, "are not confined to the Control of 

instrumentalities known or in use when the Constitution was t^^^s^^P^ 

companies. 

adopted, but keep pace with the progress of the country." 
In 1887 Mr. Justice Bradley, in summing up the cases on that 
subject, said in Leloup v. Port of Mobile ^ that "no state has 
the right to lay a tax on interstate commerce in any form what- 
ever by way of duties laid on the transportation of the subjects 
of that commerce, or on the receipts derived from that trans- 
portation, or on the occupation or business of carrying it on, 
and the reason is that such taxation is a burden on that com- 
merce, and amounts to a regulation of it which belongs solely 
to Congress." As a final extension, perhaps, of the doctrine Final 
laid down in The Genesee Chief v. Fitzhugh (i 851), it was held ofaJS'.^ty 
in The Robert W. Parsons ^ (1903), that the Erie Canal, jurisdiction. 
which, though lying wholly within the State of New York, 
forms a part of a continuous highway for interstate and foreign 
commerce by connecting Lake Erie with the Hudson River, is 
a navigable water of the United States as contradistinguished 
from a navigable water of the state. 

An attempt has now been made to outline the origin and Interstate 
growth of the mighty power vested in Congress to regulate co^^sT 
commerce, foreign and domestic, down to its enactment of "An February 4, 
Act to Regulate Commerce," approved February 4, 1887, by ^^^7. 
which the Interstate Commerce Commission was created. 
When that act was passed the case of California v. Central 
Pacific R. Co., ^ was pending, in which it was held that "the 
power to construct, or to authorize individuals or corporations 
to construct, national highways and bridges from state to state, 
is essential to the complete control and regulation of interstate 

» 96 U. S. 1. ^ « 191 U. S. 17. 

« 127 U. S. 640. « 127 U. S. I. 



420 



THE AMERICAN CONSTITUTION 



[Ch. 



Water trans- 
portation 
eclipsed by 
steam. 



Right of Con- 
gress to grant 
charters to 
railroads. 



commerce. Without authority in Congress to establish and 
maintain such highways and bridges, it would be without au- 
thority to regulate one of the most important adjuncts to com- 
merce. This power in former times was exerted to a very lim- 
ited extent, the Cumberland or National Road being the most 
notable instance. Its exertion was but little called for, as com- 
merce was then mostly conducted by water, and many of our 
statesmen entertained doubts as to the existence of the power 
to establish ways of communication by land. But since, in con- 
sequence of the expansion of the country, the multiplication of 
its products, and the invention of railroads and locomotion by 
steam, land transportation has so vastly increased, a sounder 
consideration of the subject has prevailed and led to the con- 
clusion that Congress has plenary power over the whole sub- 
ject. Of course the authority of Congress over the territories 
of the United States, and its power to grant franchises exer- 
cisable therein, are, and ever have been, undoubted. But the 
wider power was very freely exercised, and much to the gen- 
eral satisfaction, in the creation of the vast system of railroads 
connecting the East with the Pacific, traversing states as well 
as territories, and employing the agency of the state as well as 
federal corporations." ^ Thus was finally settled the right of 
Congress to grant charters for the construction of railroads 
in any state without its consent, a right never asserted prior to 
the Act to facilitate commercial, postal, and military commun- 
ication among the several states, approved June 15, 1866.^ By 
that Act was greatly accelerated the process through which 
commerce, including transportation, has been revolutionized 
by the establishment and rapid growth of inland facilities of 
distribution and sharpness of competition between trade 
centres, incident to the annihilation of distance through the 
increased speed of trains, as well as by the greatly increased 
capacity of engines and cars. It was the establishment of the 
great railway systems of continuous lines, unknown in the first 
decades of railway construction, that forced Congress in 1887 
to organize the regulating power which down to that time lay 



* See Pacific R. R. Removal Cases, 
115 U. S. 14-18. 

2 14 Stat. 66. See A Study of the 
Power of the Congress over Railroads, 



by E. A. Mosely, Secretary of the 
Interstate Commerce Commission, 
March 23, 1907. 



XIII.] INTERSTATE COMMERCE 42 1 

practically dormant. In Texas & P. R. Co. v. Interstate Com- 
merce Commission,^ it was held that the Commission created 
by the Act of 1887 is a body corporate, with legal capacity to 
be a party plaintiff or defendant in the federal courts ; and that 
it may apply by petition to the judicial power for the enforce- 
ment of its orders. In defining its jurisdiction the Court said: Jurisdiction 
"Having^ thus included in its scope the entire commerce of the commerce ^ 
United States, foreign and interstate, and subjected to its reg- Commission, 
ulations all carriers engaged in the transportation of passen- 
gers or property, by whatever instrumentalities of shipment 
or carriage, the Act proceeds to declare that * all charges made 
for any service rendered or to be rendered in the transporta- 
tion of passengers or property as aforesaid, or in connection 
therewith, or for the receiving, delivering, storage, or handling 
of such property, shall be reasonable and just, and every un- 
just and unreasonable charge for such service is prohibited 
and declared to be unlawful.' The significance of this language, 
in thus extending the judgment of the tribunal established 
to enforce the provisions of the Act to the entire service to be 
performed by carriers, is obvious." 

Prior to the Act of 1887 railroad traffic was regulated by Prior reguia- 
the rules of the common law applicable to common carriers.^ monIa\v°™' 
In the first case in which the Act of 1887 was construed, 
the Court said that prior to its enactment "railway traffic in 
this country was regulated by the principles of the common 
law applicable to common carriers, which demanded little 
more than that they should carry for all persons who applied, 
in the order in which the goods were delivered at the particular 
station, and that their charges for transportation should be 
reasonable. It was even doubted whether they were bound to 
make the same charge to all persons for the same service. . . . 
The principal objects of the Interstate Commerce Act were to Objects of Act 
secure just and reasonable charges for transportation; to pro- is^^^^dared 
hibit unjust discriminations in the rendition of like services 
under similar circumstances and conditions ; to prevent undue 
or unreasonable preferences to persons, corporations, or local- 
ities ; to prohibit greater compensation for a shorter than for a 
longer distance over the same line ; and to abolish combinations 
for the pooling of freights. It was not designed, however, to 
* 162 U. S. 197. * Munn v. Illinois, 94 U. S. 113. 



422 



THE AMERICAN CONSTITUTION 



[Ch. 



Judicial re- 
view of rates 
fixed by legis- 
lature or com- 
missioa. 



prevent competition between different roads, or to interfere 
with the customary arrangements made by railway companies 
for reduced fares in consideration of increased mileage, where 
such reduction did not operate as an unjust discrimination 
against other persons traveling over the road. In other words, 
it was not to ignore the principle that one can sell at wholesale 
cheaper than at retail." * 

In Reagan v. Farmers' Loan and Trust Co.,^ it was held that 
although the formation of a tariff of charges for transportation 
by a common carrier is a legislative or ministerial rather than 
a judicial function, the Court may decide whether or not such 
rates are unjust and unreasonable and such as to work a practi- 
cal destruction of rights of property, and if found so to be may 
restrain their operation; that the fixing and enforcement by a 
railroad commission of unjust and unreasonable rates for trans- 
portation by railroad companies is an unconstitutional denial 
of the equal protection of the laws; that a schedule of rates 
made by railroad commissioners being challenged as a whole, 
the Court must either condemn or sustain it as a whole and can- 
not rearrange it or prepare a new schedule. In that case the 
Court said in express terms: "The courts are not authorized to 
revise or change the body of rates imposed by a legislature or a 
commission ; they do not determine whether one rate is prefer- 
able to another, or what under all circumstances would be fair 
and reasonable as between the carriers and the shippers ; they 
do not engage in any mere administrative work ; but still there 
can be no doubt of their power and duty to inquire whether a 
body of rates prescribed by a legislature or a commission is un- 
just and unreasonable, and such as to work a practical destruc- 
tion to rights of property, and if found so to be, to restrain its 
operation." 

After the Commission had undertaken for many years to 

mission to pre- prescribe rates for the future, under the terms of the original 
scnbe rates; .., .i-t ^ 

Act, Its right to do so was questioned m Interstate Commerce 
Commission v. Cincinnati, N. O. & T. P. Ry. Co.,' in which 
case the Court held that the Commission had no such right. 
"It will be perceived," say the Court, "that in this case the 
Interstate Commerce Commission assumed the right to pre- 

1 Interstate Commerce Com. v. ^ 154 U. S. 362. 

Baltimore & O. R. Co., 145 U. S. 263. » 167 U. S. 479. 



Right of Com- 



XIII.] INTERSTATE COMMERCE 423 

scribe rules which should control in the future, and their 
application to the Court was for a mandamus to compel the 
companies to comply with their decision ; that is, to abide by 
their legislative determination as to the maximum rates to be 
observed in the future. Nowhere in the Interstate Commerce 
Commission Act do we find words similar to those in the stat- 
utes referred to. . . . The power, therefore, is not expressly 
given." It was therefore held that it will not be presumed 
that Congress has transferred to any administrative body the 
power to prescribe a tariff of rates for carriage by a common 
carrier, if that power has to be inferred from doubtful and 
uncertain language; that the incorporation into the Act of the 
common-law obligation resting upon the carrier to make all its 
charges reasonable and just, and directing the Commission to 
execute and enforce the provisions of the Act, do not by impli- 
cation carry to the Commission or invest it with power to 
exercise the legislative function of prescribing rates which shall 
control in the future. In a word, "it is one thing to inquire 
whether the rates which have been charged and collected are 
reasonable, — that is a judicial act; but an entirely different has judicial 
thing to prescribe rates which shall be charged in the future, — fativrpowen 
that is a legislative act." 

Finally the Court declared that the important duties of the 
Commission in respect to railroad rates include the duty of in- 
quiry as to the management of the business, with the right to 
compel complete and full information concerning it, and the 
duty of seeing that there is no violation of the long and short 
haul clause of the Act, or any prohibited discrimination, rebate, 
or other device to give undue preferences, and also that the 
publicity required by section 6 is observed. It is now firmly 
settled that the Federal Government has exclusive power to 
regulate interstate commerce, and that no state can make a 
valid regulation affecting interstate transportation of passen- 
gers and property. The freedom of such commerce from state Freedom of 
control was definitely settled as to the taxing power of the state J-oj^g^ce ' 
in the case of the State Freight Tax in 1873; ^ and later in from state 
1887, in the case of Robbins v. Shelby County Taxing District,^ *^°°^°'- 
was declared the freedom of interstate commerce with re- 
spect to the police power of the state to control the liquor 
1 15 Wallace, 232. » 120 U. S. 623. 



424 



THE AMERICAN CONSTITUTION 



[Ch. 



Intrastate 
commerce 
defined. 



State has 
no power 
to destroy. 



Extent of its 
police power. 



traffic. In Covington, etc., Bridge Co. v. Kentucky^ it was held 
that an interstate bridge was an instrument of interstate com- 
merce whereon Congress alone possessed the power to enact 
a uniform schedule of charges ; and the same principle was ap- 
plied in holding invalid the dispensary laws of South Carolina 
regulating the sale of intoxicating liquors and prohibiting their 
importation.* 

In Louisville, N. O. & T. R. Co. v. Mississippi,' the line be- 
tween interstate and intrastate commerce was thus drawn: " It 
has often been held in this Court, that there can be no doubt 
about it, that there is a commerce wholly within the state, 
which is not subject to the constitutional provision, and the 
distinction between commerce among the states and the other 
class of commerce between the citizens of a single state, and 
conducted within its limits exclusively, is one which has been 
fully recognized in this Court, although it may not be always 
easy, where the lines of these classes approach each other, to 
distinguish between the one and the other." ^ Reference is then 
made to Stone v. Farmers' Loan and Trust Co.,^ in which it was 
held that a state has power to limit railroad charges for trans- 
portation within its own jurisdiction, unless restrained by con- 
tract, or the power of Congress to regulate foreign or interstate 
commerce ; and that the power can only be bargained away, if 
at all, by words of positive grant, or their equivalent. It was 
said, however, that "this power to regulate is not a power to 
destroy, and limitation is not the equivalent of confiscation. 
Under pretense of regulating fares and freights, the state can- 
not require a railroad corporation to carry persons or property 
without reward ; neither can it do that which in law amounts 
to a taking of private property for public use without just com- 
pensation, or without due process of law." In Munn v. Illinois, 
a statute of that state fixing the maximum of charges for the 
storage of grain in warehouses in Chicago and other places in 
the state was held to be valid, as a mere common-law regula- 
tion of trade or of business, not in violation of the limitations 
upon the legislative power of the state imposed by the Federal 



1 154 U. S. 204. 

« Scott I/. Donald, 165 U. S. 58; 
Vance v. Vandercook, 170 U. S. 439. 
» 133 U. S. 587. 



4 The Daniel Bafl, to Wall. 557; 
Hall V. De Cuir, 95 U. S. 485; W. U. 
Tel. Co. V. Texas, 105 U. S. 460. 

s 116U. S. 307. 



XIII.l INTERSTATE COMMERCE 425 

Constitution. It was also held that citizens must so use their 
property as not to injure others; that the regulation of the 
price of the use of property is not necessarily a deprivation; 
that property, such as Chicago grain warehouses, affected with 
a public interest, is subject to public regulation ; that the legis- 
lature is the judge of the reasonableness of the regulation of 
rates and charges; that it is the judge of the propriety of its 
interference; that the regulation of Chicago elevators is not 
a regulation of interstate commerce.^ In the subsequent case 
of Chicago, etc., R. R. Co. v. Minnesota,^ three of the justices 
dissented on the ground that the conclusions of the majority 
practically overruled the case of Munn v. Illinois. Mr. Justice 
Blatchford, who delivered the opinion of the Court, said: "The Subsequent 
question of the reasonableness of a rate of charge for transport- ^ cations. 
ation by a railroad company, involving as it does the element 
of reasonableness, both as regards the company and as regards 
the public, is eminently a question for judicial investigation, 
requiring due process of law for its determination." That 
dictum of the prevailing opinion in the Minnesota case pointed 
the way to further modifications in the rule which Munn v. 
Illinois had established. The proposition, that the reasonable- 
ness of rates established is a judicial question, has since been 
approved and has become the settled rule.^ 

In Chicago, B. & Q. R. Co. v. lowa,^ an Illinois statute estab- 
lishing a reasonable maximum rate of charge for the transport- 
ation of passengers and freight on the different railroads of the 
state was held not to conflict either with the Federal Constitu- 
tion or that of the state, as railroad companies engaged in a 
public employment affecting the public interest are subject to 
legislative control as to their rates of fare and freight, un- 
less protected by their charters. An important statement of Police power 
the relation between the police power of a state and the power °^ ^*^*^ ^"^^ 

r r^ , . . ... commerce 

of Congress to regulate mterstate commerce is contamed m power of 
Louisville & N. R. Co. v. Kentucky,^ wherein it was held that Congress. 
the prohibition by a state of the consolidation of parallel and 
competing lines of railway is not interference with the power of 

1 94 U. S. 113. terstate Commerce Com. v. Railway 

2 134 U. S. 461. Co., 167 U. S. 500. 
* Reagan v. Farmers' Loan & * 94 U. S. 155, 

Trust Company, 154 U. S. 397; In- " 161 U. S. 677. 



426 



THE AMERICAN CONSTITUTION 



[Ch. 



Separate ac- 
commodations 
on account of 
race. 



Permissible 
state taxation 
and regulation. 



State 

inspection 

laws. 



Congress over interstate commerce ; that whatever is contrary 
to public policy, or inimical to the public interest, is subject to 
the police power of the state and within legislative control, 
in the exercise of which the legislature is vested with a large 
discretion, beyond the reach of judicial inquiry, if it is exercised 
bona fide for the protection of the public. 

In Plessy v. Ferguson^ it was held that the Thirteenth 
Amendment, abolishing slavery and involuntary servitude, is 
not violated by a state statute requiring separate accommoda- 
tions for white and colored persons on railroads; that a state 
statute providing for separate railway carriages for the white 
and colored races by railways carrying passengers in their 
coaches, in the state, and the assignment of passengers to 
coaches according to their race, does not deprive a colored 
person of any right under the Fourteenth Amendment. 

The privilege tax imposed by Mississippi on sleeping and 
palace car companies carrying passengers from one point to 
another within the state cannot be deemed an unconstitutional 
regulation of commerce. The company cannot complain of 
being taxed for the privilege of doing a local business which it 
is free to renounce.^ A railroad corporation largely engaged in 
interstate commerce is amenable to state regulation and taxa- 
tion as to any of its service which is wholly performed within 
the state, and not as a part of interstate service.' A state tax 
on the property within the state belonging to a foreign tele- 
graph corporation, the value of which was determined by re- 
garding it as part of a system operated in other states, is not 
invalid because such corporation is engaged in interstate 
business.^ 

In Patapsco Guano Co. v. North Carolina Board of Agricul- 
ture,® it was held that interstate as well as foreign commerce is 
subject to state inspection laws ; that such laws are valid when 
they act on a subject before it becomes an article of commerce, 
and also when, although operating on articles brought from one 
state into another, they provide for inspection in the exercise 
of that power of self-protection commonly called the police 



163 U. S. 537- 

Pullman Co. v. Adams, 189 U. S- 



420. 



» New York ex rel. Penn. R. Co. 



V. Knight, 192 U. S. 21. 

* Western Union Telegraph Co. 
V. Missouri, 190 U. S. 412. 

6 171 U. S. 343. 



XIII.l INTERSTATE COMMERCE '427 

power. In Kimmlsh v. Ball,^ it was held that the statute of 
Iowa, providing that any person who has in his possession in 
that state any Texas cattle which have not been wintered north 
shall be liable for any damages that may accrue from allowing 
such cattle to run at large, and thereby spreading the disease 
known as Texas Fever, is not in conflict with the paramount 
authority of Congress to regulate interstate commerce. 

In Grossman v. Lurman,^ it was held that the New York Pure food acts, 
statute forbidding the sale of adulterated food and drugs is not 
repugnant to the commerce clause, but is a valid exercise of 
the police power of the state. Congress has not deprived the 
states of their police power to legislate for the prevention of 
the sale of articles of food so adulterated as to come within 
valid prohibitions of the statute. 

In Bartemeyer v. lowa,^ it was held that the right to sell in- Liquor traffic, 
toxicating liquors is not one of the privileges and immunities 
of a citizen of the United States which, by the Fourteenth 
Amendment, a state is forbidden to abridge ; and at a little later 
day it was held in Mugler v. Kansas^ that a state law prohibit- 
ing the manufacture within its limits of intoxicating liquors, 
to be sold and bartered for general use as a beverage, was not 
necessarily an infraction of the Constitution, because the 
Fourteenth Amendment does not deprive a state of the police 
power to determine primarily what measures are needful for 
the protection of the public morals, health, and safety. It was 
held, however, in Bowman v. Chicago & Northwestern R. Co.^ 
that a provision of the Code of Iowa forbidding any common 
carrier to bring within that state any intoxicating liquors from 
any other state or territory, without first having the certificate 
therein required, is a regulation of commerce among the states 
and is void, as repugnant to the Federal Constitution; such a 
statute is not an inspection law, nor a quarantine or sanitary 
law, and is not a legitimate exercise of police power by the state. 
Mr. Justice Field, in his concurring opinion, said : "That where Justice Field 
the subject upon which Congress can act under its commercial 
power is local in its nature or sphere of operation, such as har- 
bor pilotage, the improvement of harbors, the establishment 



» 129 U. S. 217. * 123 U. S. 623. 

2 192 U. S. 189. 6 125 U. S. 465. 

8 18 Wall. 129. 



428 



THE AMERICAN CONSTITUTION 



[Ch. 



Exemption 
of original 
packages. 



Atnendment 
of June i8, 
1910. 



of beacons and buoys to guide vessels in and out of port, the 
construction of bridges over navigable rivers, the erection of 
wharves, piers and docks, and the like, which can be properly 
regulated only by special provisions adapted to their localities, 
the state can act until Congress interferes and supersedes its 
authority; but where the subject is national in its character, 
and admits and requires uniformity of regulation, affecting 
alike all the states, such as transportation between the states, 
including the importation of goods from one state to another, 
Congress can alone act upon it, and provide the needed regu- 
lations. The absence of any law of Congress on the subject is 
equivalent to its declaration that commerce in that matter 
shall be free. Thus the absence of regulations as to interstate 
commerce with reference to any particular subject is taken as 
a declaration that the importation of that article into the state 
shall be unrestricted. It is only after the importation is com- 
pleted, and the property is mingled with and becomes a part of 
the general property of the state, that its regulations can act 
upon it, except so far as may be necessary to insure safety in 
the disposition of the import until thus mingled." That separ- 
ation of the two domains was approved, as "doctrine now firmly 
established," in Leisy v. Hardin,^ in which it was held that a 
citizen of one state has the right to import beer into another 
state, and the right to sell it there in its original packages ; that 
up to such sale the state has no power to interfere by seizure, 
or any other action, to prevent the importation and sale by a 
foreign or non-resident importer ; that the right of transporta- 
tion of an article of commerce from one state to another in- 
cludes the right of the consignee to sell it in unbroken packages 
at the place where the transportation terminates; that only 
after the importation is completed and the property imported is 
mingled with and becomes apart of the general property of the 
state by a sale by the importer, can state regulations act upon 
it. That case was approved in American Steel Co. v. Speed ,^ in 
which it was held that a state is not precluded from imposing 
a merchants' tax upon a non-resident manufacturing corpora- 
tion which stores property received from another state in a 
warehouse and subsequently sells the same. In the Act to Reg- 
ulate Commerce as amended up to June 18, 19 10, it is expressly 
» 135 U. S. 100. 2 192 U. S. 520. 



XIII.] INTERSTATE COMMERCE 429 

provided "that the provisions of this Act shall not apply to 
the transportation of passengers or property, or to the receiv- 
ing, delivering, storage, or handling of property wholly within 
one state and not shipped to or from a foreign country from 
or to any state or territory as aforesaid, nor shall they apply to 
the transmission of messages by telephone, telegraph, or cable 
wholly within one state and not transmitted to or from a for- 
eign country from or to any state or territory as aforesaid." 

Such is the essence of the outcome of twenty- three years of Three new 
construction of the Interstate Commerce Act of 1887 at the tersinActof 
hands of the Commission and the federal courts, all of which June 18, 1910. 
must be considered in connection with the amendments made 
by Congress during that tentative period, so numerous that a 
mere catalogue of their titles occupies two printed pages octavo. 
In the light of that experience Congress passed an Act, ap- 
proved June 18, 1910, entitled, "An Act to create a Commerce 
Court, and to amend the Act entitled 'An Act to regulate 
commerce,' approved February fourth, eighteen hundred and 
eighty-seven, as heretofore amended, and for other purposes." 
Since that enactment the Interstate Commerce Commission A summary 
has published a brief compilation entitled, "The Act to Regu- 
late Commerce (as amended), and acts supplementary thereto: 
Commerce Court Act; Safety Appliance Acts; Act requiring 
monthly report of accidents ; Arbitration Act ; Hours of Serv- 
ice Act; Revised to July i, 1910." In that form we have a 
summary of the entire field of activity to which the work of the 
Commission has been so far extended. In the Act of June 18, 
1 9 10, there are three new subject-matters worthy of special 
consideration. By section 7 of that Act it is provided "that 
the provisions of this Act shall apply to any corporation or 
any person or persons engaged in the transportation of oil 
or other commodity, except water and except natural or arti- 
ficial gas, by means of pipe-lines, or partly by pipe-lines and Pipe-lines, tele- 
partly by railroad, or partly by pipe-lines and partly by water, ^^^^^^ ^^^^ 
and to telegraph, telephone, and cable companies (whether cable com- 
wire or wireless) engaged in sending messages from one state, ^^QQ^^arrSrs 
territory, or district of the United States, to any other state, 
territory, or district of the United States, or to any foreign 
country, who shall be considered and held to be a common 
carrier within the meaning and purpose of this Act." By sec- 



430 



THE AMERICAN CONSTITUTION 



[Ch. 



Jurisdiction 
of Commerce 
Court. 



Investigation 
of railroad 
stocks and 
bonds. 



Rsulroad 
capitalization. 



tlon I of the same Act "a court of the United States is hereby 
created which shall be known as the Commerce Court, and 
shall have the jurisdiction now possessed by Circuit Courts of 
the United States and the judges thereof over all cases of the 
following kinds: First. All cases for the enforcement, other- 
wise than by adjudication and collection of a forfeiture or 
penalty or by the infliction of criminal punishment, of any 
order of the Interstate Commerce Commission other than for 
the payment of money. Second. Cases brought to enjoin, 
set aside, or suspend in whole or in part any order of the 
Interstate Commerce Commission. Third. Such cases as by 
Section three of the Act entitled 'An Act to further regulate 
commerce with foreign nations and among the states, 'approved 
February nineteenth, nineteen hundred and three, are au- 
thorized to be maintained in a Circuit Court of the United 
States. Fourth. All such mandamus proceedings as under the 
provisions of section twenty or section twenty-three of the 
Act entitled 'An Act to regulate commerce,' approved Febru- 
ary four, eighteen hundred and eighty-seven, as amended, are 
authorized to be maintained in a Circuit Court of the United 
States. Nothing contained in this Act shall be construed as 
enlarging the jurisdiction now possessed by the Circuit Courts 
of the United States or the judges thereof, that is hereby 
transferred to and vested in the Commerce Court. The jurisdic- 
tion of the Commerce Court over cases of the foregoing classes 
shall be exclusive; but this Act shall not affect the jurisdiction 
now possessed by any Circuit or District Court of the United 
States over cases or proceedings of a kind not within the above 
enumerated classes." By section 1 6 it is provided " that the 
President is hereby authorized to appoint a commission to 
investigate questions pertaining to the issuance of stock and 
bonds by railroad corporations, subject to the provisions of 
the Act to regulate commerce, and the power of Congress to 
regulate or affect the same, and to fix the compensation of the 
members of such commission." 

As that Commission has been appointed, the Federal Gov- 
ernment has taken the first step looking to its control of rail- 
way capitalization, a subject whose vastness will appear from 
the following statement: "The stocks of the roads of this coun- 
try, exclusive of switching and terminal roads, outstanding in 



XIII.] INTERSTATE COMMERCE 43 1 

1890, was In round numbers, $4,409,658,000, and in 1908, 
$7,373,212,000: in the former year $28,194 P^r mile of line, 
and in the latter year $33,238 per mile of line. Their funded 
debt outstanding in 1890 was $4,574,576,000, and in 1908, 
$9,394,332,000: per mile of line in the former year $29,249, 
and in the latter year $42,349. The interest that accrued 
in the year 1890 was $221,499,000, and in the year 1908, 
$368,295,000: the amount of interest that accrued in the for- 
mer year per mile of line was $1,466,000 and in the latter year 
$1,660,000. Thus it will be seen that there has been a steady 
and rapid increase in the totals of stock and bond capitaliza- 
tion, due, of course, in large part, to additional mileage, and 
doubtless to some extent to permanent improvements, addi- 
tional equipment, etc. ; and that the annual interest accrued per 
mile of line in 1908 was nearly fifteen per cent in excess of that 
in 1890, and more than ten per cent in excess of the interest ac- 
crued in 1905." ^ Those who contend that federal control should Federal 
be extended over the broad field of railroad finance say that ^^agendes 
companies with established characters and credit should not of interstate 
be permitted in times of prosperity to burden their properties *^°™™*'^^''- 
with as much increased liability as the market will take, with- 
out due regard to the purposes to which the fruits of the addi- 
tional loans shall be applied. The right to take away such a 
standing temptation to exploiters is based upon the assump- 
tion that the absolute and unconditional control over inter- 
state commerce extends necessarily to all of the agencies in- 
cident to it. When it is actually asserted, it will no doubt be 
resisted as unconstitutional, on the ground that it violates the 
rights conferred by the state charters under which most of the 
carriers are operated. In order to create a class of corporations 
that will be unable to set up such a defense, a bill was intro- 
duced in the House of Representatives, on February 7, 19 10, 
entitled "A Bill to provide for the formation of corporations to 
engage in interstate and international trade," each one of Corporations 
which is to be invested with a national franchise to produce t° ^°e/se m 

. ^ . . interstate and 

or manufacture within any state any of the articles in which international 
it proposes to trade, such franchises having been heretofore *'**^®- 

* These figures were taken from state Commerce Commission, de- 
the address of the Hon. Judson C. livered before the Economic Club of 
Clements, a member of the Inter- Boston, March 30, 1910. 



432 



THE AMERICAN CONSTITUTION 



[Ch. 



Federal 
control of 
corporations. 



Excise tax 
on business. 



Federal Anti- 
Trust Act of 
July 2, 1890. 



Prior anti- 
trust state 
statutes. 



granted only by the states. Whether Congress can confer them 
is certainly a serious question involving, in a very difficult and 
delicate form, the relations of the state and federal govern- 
ments to each other. The purpose here is simply to state these 
pending problems, not to solve them. That there is a deter- 
mined purpose to extend federal control over corporations to 
the greatest extent possible, regardless of the sources from 
which their charters are drawn, was manifested by the Fed- 
eral Corporation Tax Law of 1909, which provides "that every 
corporation . . . organized under the laws of the United States, 
or of any state or territory of the United States, , . . shall be 
subject to pay annually a special tax with respect to the 
carrying on, or doing business by such corporation." The 
advocates of the validity of the tax rest its constitutionality 
mainly upon the proposition that it is an excise tax on busi- 
ness similar to that sustained in the case of Spreckles v. 
McClain,^ while those who oppose it contend that the tax is 
certainly invalid because violative of the fundamental prin- 
ciple that neither state nor federal government may tax one 
of the instrumentalities or powers of the other, since such tax- 
ation, involving as it does the possibility of the destruction 
by one government of those functions reserved exclusively to 
the other, is violative of the federal principle itself.^ 

The same general causes that compelled Congress to enact 
the Interstate Commerce Act of 1887, compelled it to enact the 
Sherman Anti-Trust Act of July 2, 1890, which contains these 
two distinct prohibitions : — 

Section i . Every contract, combination, in the form of trust or other- 
wise, or conspiracy, in restraint of trade or commerce among the several 
states, or with foreign nations, is hereby declared to be illegal. 

Section 2. Every person who shall monopolize, or attempt to mono- 
polize, or combine or conspire with any other person or persons, to 
monopolize, any part of the trade or commerce among the several 
states, or with foreign nations, will be guilty of a misdemeanor. 

As early as 1870 some of the states attempted to prevent 
extortion through combinations to suppress competition by 
means of constitutional prohibitions directed principally against 



1 192 U. S. 397. 

* McCulloch V. Maryland, 4 
Wheat. 316. A judgment has just 



been rendered sustaining the con- 
stitutionality of the Act. 



XIII.] INTERSTATE COMMERCE 433 

discrimination in fares and freights, while in a few states the 
consolidation of parallel and competing lines of railway, was for- 
bidden.^ The movements thus begun in the states against rail- 
road pools and discrimination in rates for transportation have 
since crystallized into systems of statute law directed against 
restraints of trade generally. The warfare now being carried 
on by the joint forces of the state and federal governments 
against monopolies and combinations in restraint of trade is 
almost as old as civilization itself. As early as a. d. 483 we Zeno's edict 
find the Emperor Zeno issuing to the Pretorian Prefect of poUeT^A^D^'** 
Constantinople an edict opening with this declaration: "We 483- 
command that no one may presume to exercise a monopoly 
of any kind of cloth, or of fish, or of any other thing serving 
for food, or for any other use, whatever its nature may be, 
either of his own authority, or under a rescript of an emperor 
already procured, or that may hereafter be procured, . . . 
nor may any persons combine or agree, in unlawful meetings, 
that different kinds of merchandise may not be sold at a less 
price than they may have agreed among themselves."^ 

In England we find from the Year-Books, as early as the sec- Early English 
ond of Henry V (a. d. 1415), that the rule that contracts which ^^^^tTin re-°" 
are in restraint of trade are void, as against public policy, was straint of trade. 
then settled law. The kind of a "trust" described in Zeno's 
edict became the subject of legislation in England as early as 
the fifth and sixth of Edward VI, chapter 14, in "An Act 
against Regraters, Foretasters, and Ingrossers," the crime of 
regrating in Old-English law consisting "of buying or getting 
into one's hands at a fair or market any provisions, corn, or 
other dead victual, with the intention of selHng the same again 
in the same fair or market, or in some other within four miles 
thereof, at a higher price." ^ That statute was repealed by 
12 George III, chapter 71, because "it hath been found by ex- 
perience that the restraints laid by several statutes upon the 
dealing in corn, meal, flour, cattle, and sundry other sorts of 
victuals, by preventing a free trade in said commodities, have 
a tendency to discourage the growth, and to enhance the price 

* See Spelling on Trusts and Mo- and first appeared in 8 Canadian 

nopolies, 140. Law Times, 299, 300. See also 23 

2 Code, iv, 59. The translation of Am. L. Rev. 261. 

this edict is by A. A. Marsh, Q. C, ' Black, Law Dictionary. 



434 



THE AMERICAN CONSTITUTION 



[Ch. 



Monopolies 
in time of 
Edward VI. 



Monopolies of 
Elizabeth. 



Anti- 
monopoly 
statute of 21 
James I, c. 3, 



became basic 
in this coun- 
try. 



of the same." In the reign of Edward VI and his immediate 
successors it became possible to create monopolies not by a 
combination of individuals or companies, but by royal patents 
whereby the sovereign was accustomed to grant special priv- 
ileges to his favorites, which constituted a practical monopoly. 
As defined by Lord Coke,'^ "A monopoly is an institution or 
allowance by the King by his grant, commission, or otherwise 
to any person or persons, bodies politic or corporate, or for the 
sole buying, selling, making, working, or using of anything, 
whereby any person or persons, bodies politic or corporate, are 
sought to be restrained of any freedom or liberty that they 
had before, or hindered in their lawful trade." It was mono- 
polies of that character which Elizabeth granted with such a 
lavish hand. "She granted her servants and courtiers," says 
Hume,^ "patents for monopolies, and these patents they sold 
to others, who were thereby enabled to raise commodities to 
what price they pleased, and who put invincible restraints upon 
all commerce, industry, and emulation in the arts." When 
the legality of such patents was questioned, they were declared 
void in 1602, in the case of Darcy v. Allain.^ 

The position thus taken by the Court was subsequently con- 
firmed in 1623 by the statute of 21 James I, chapter 3, in which 
it was declared "that all monopolies and all commissions, grants, 
licenses, charters, and letters patent heretofore made or granted 
or hereafter to be made or granted to any person or persons, 
bodies politic or corporate whatsoever, of or for the sole buy- 
ing, selling, making, working, or using of anything within this 
realm or the dominion of Wales," are altogether contrary 
to the laws of the realm and utterly void, with the exception of 
patents for new inventions for a limited period, and for print- 
ing (then supposed to belong to the prerogative of the King), 
and for the preparation and manufacture of certain articles and 
ordnance intended for the prosecution of war. While that anti- 
monopoly statute of James I became basic* in the jurisprudence 
of the United States, as one of those applicable to the condition 
of each state in which it was accepted as a part of the common 

^ 3 Inst. 181. Beach, Monopolies * See the masterful exposition of 

and Industrial Trusts, 4-36. Mr. Justice Field in his dissenting 

'History of England (Harper's opinion inthe Slaughter-House Cases, 

ed.), 335-336. 16 Wall. 36. 

» II Rep. 84 &. 



XIII.l INTERSTATE COMMERCE 435 

law, the early English doctrine on the subject of monopolies 
was there seriously modified in favor of the same. "At a later 
period, as modern improvements in machinery and manufac- 
tures came into use, and under the influence of steam naviga- 
tion and railway transportation, many of the statutes against 
monopolies were repealed, and the decisions of the courts be- 
came more tolerant of combinations of capital in business oper- 
ations, corporations and joint-stock companies, conducting its principles 
business on a large scale, came to be recognized as legitimate, g^^^^"^ 
and proper business methods. Courts of equity were somewhat 
reluctant to conform their decisions to the statutory and 
common-law changes, but the rules established at an earlier day 
were gradually modified in adaptation to modern industrial 
conditions. The leading case of the Mogul Steamship Com- 
pany V. McGregor,^ before the English Court of Appeals, is 
recognized as a turning-point in the decisions of the courts. 
It is much more tolerant of 'trusts' than the decisions of an 
earlier period." ^ 

When the growth of great combinations of capital, arising American 
out of steam navigation and railway transportation, and out of 
modern improvements in machinery and manufactures, cast English 
upon American courts the duty of dealing anew, and upon a doctrine. 
larger scale, with trusts and monopolies, instead of following 
recent English precedents in favor of "trusts," they deemed 
it wiser to advance by falling back upon the earlier and more 
stringent rules of the common law. The Federal Anti-Trust 
Act of 1890 and the anti-trust statutes of most of the states 
affix severe penalties to a violation of their terms, and in some 
instances an attempt to control the price of any commodity or 
to limit its production is made a criminal conspiracy. As now 
construed, the Federal Anti-Trust Act is supposed to indulge 
in a sweeping denunciation of "every contract, combination, in 
the form of trust or otherwise, or conspiracy, in restraint of 
trade or commerce among the several states, or with foreign 
nations." For seven years after its passage the Idea, evidently HowAnti- 
entertained by its authors, seems to have prevailed that "this u^eJgf^/^ 
form of language merely described such contracts and combina- its authors. 

* L. R. 23 Q. B. Div. 598; L. R. * Beach, Monopolies and Indus- 

App. Cas. 25. See Taylor, The Set- trial Trusts, 15-16. 
ence of Jurisprudence, 542-543. 



courts fall 
back on earlier 



stniction of 
1897 



436 THE AMERICAN CONSTITUTION [Ch. 

tions as were made for the express purpose of preventing com- 
petition and thereby controlHng prices and unduly enhancing 
profits." ^ A marked change took place, however, in the languid 
administration of the Act that had prevailed down to that time 
when in 1897, the Supreme Court, adopting a literal construc- 
tion of the broad prohibition of the Act, declared, in United 
Literal con- States w. Trans-Missouri Freight Association, ^ that "it may be 
that the policy evidenced by the passage of the Act itself will, 
if carried out, result in disaster to the roads and in a failure to 
secure the advantages sought from such legislation. Whether 
that will be the result or not we do not know and cannot pre- 
dict. These considerations are, however, not for us. If the Act 
ought to read as contended for by the defendants. Congress is 
the body to amend it and not this Court by a process of judicial 
legislation wholly unjustifiable." 
u. s. V. Knight During the Harrison Administration, in the early part of 
Co., 1895. which the Act in question was passed, only seven proceedings 
were commenced under it, — four to dissolve combinations, in 
which only minor successes were won, and three criminal pro- 
ceedings, all of which failed. To that unpromising beginning 
was added during the first Cleveland Administration the de- 
feat in 1895 of the Government in United States v. E. C. Knight 
Co.,' in which it was held that Congress did not attempt by the 
Act of July 2, 1890, to assert the power to deal with monopoly 
as such ; or to limit or restrict the rights of corporations or citi- 
zens in the acquisition, control, or disposition of property; or 
to regulate or prescribe the prices at which property or the pro- 
ducts thereof should be sold ; or to make criminal the acts of per- 
sons in the acquisition or control of property which the states 
sanctioned or permitted; that an article is manufactured for 
export to another state does not make it an article of interstate 
commerce ; the intent of the manufacturer does not determine 
when the article belongs to commerce ; that trade or commerce 
might be indirectly affected is not enough. The primary pur- 
pose of the Act, "to protect trade and commerce against unlaw- 
ful restraints and monopolies," was declared to be the preven- 

^ See Gilbert H. Montague's arti- ate, March 27, 1890; Senator Hoar, 

cle entitled "The Defects of the Speech in Senate, April 8, 1890. 
Sherman Anti-Trust Law," Yale ^ 166 U. S. 290, 340. 

Law Journal, Dec, 1909, p. i, citing ' 156 U. S. 1. 

Senator Edmunds, Speech in Sen- 



XIII.] INTERSTATE COMMERCE 437 

tion of combinations, contracts, and conspiracies to monopolize 
or restrain interstate or international trade and commerce. 

In referring to that defeat, in his annual report for 1895, the 
Attorney-General said: "Combinations and monopolies, there- Attomey-Gen- 
fore, although they may unlawfully control production and oriSpstT^. 
prices of articles in general use, cannot be reached under this 
law merely because they are combinations and monopolies, 
nor because they may engage in interstate commerce as one of 
the incidents of their business " ; and, in his report of the next 
year, he added that "the restricted scope of the provisions of 
this law as they had been construed by the courts, especially 
in the case of United States v. E. C. Knight Co. (156 U. S. i), 
makes amendment necessary if any effective action is expected 
from this department." ^ Until that time the Act had been 
employed effectively only in the dissolution of oppressive trade 
agreements, and in the punishment of lawless combinations of 
laborers and railroad employees, charged with a combination 
and conspiracy to bring about unlawful and forcible inter- 
ference with interstate commerce and the transportation of 
the mails. In denying the petition for habeas corpus, Re 
Debs, 2 the Court said: "We enter into no examination of the ReBehs, 1895. 
Act of July 2, 1890 (26 Stat, at Large, 209), upon which the 
Circuit Court relied mainly to sustain its jurisdiction. It must 
not be understood from this that we dissent from the conclu- 
sions of that court in reference to the scope of the Act, but sim- 
ply that we prefer to rest our judgment on the broader ground 
which has been discussed in this opinion, ^believing it of import- 
ance that the principles underlying it should be fully stated 
and affirmed." 

Such were the conditions antecedent to the announcement, United States 
on March 22, 1897, of the judgment in United States v. Trans- souri^reight' 
Missouri Freight Association, in which it was bluntly declared Assodation, 
that the judicial power would execute " the policy evidenced ^^^'' 
by the passage of the Act itself," regardless of any possible 
disaster that might result from the enforcement of that policy; 

^ Annual Report of the Attorney- ers and duties to be exercised and 

General of the United States, 1896. discharged for the general welfare, 

2 158 U. S. 564 (1895). has a right to apply to its own courts 

» That broader ground was that for any proper assistance in the ex- 

" every government, intrusted by ercise of the one and the discharge 

the very terms of its being with pow- of the other." 



438 



THE AMERICAN CONSTITUTION 



[Ch. 



Single owner- 
ship in "hold- 
ing corpora- ^ 
tions." /i 



Surrender of 
McKinley 
Administra- 
tioQ. 



that if amendments were necessary, Congress alone was com- 
petent to make them. The outcome of the alarm that fol- 
lowed that change in the policy of the Supreme Court was a 
rush to consolidation in every branch of industry. As the Act, 
strictly construed, put the stamp of nullity upon every contract, 
combination, or agreement, in the form of trust or otherwise, 
in restraint of trade or commerce among the several states, or with 
foreign nations, the corporations resolved to abandon contracts, 
associations, and loose combinations restraining trade in the 
sHghtest degree, for consolidation under single ownership in 
'-holding corporations." Thus came into being gigantic "hold- 
ing corporations," designed to concentrate under a single con- 
trol power previously diffused among groups of concerns. As 
a speciaHst has recently stated it: "Before 1897 there existed 
scarcely sixty concerns that were dominant in their respective 
trades. During the next three years one hundred and eighty- 
three such corporations were organized — seventy-nine in the 
year 1899 alone — with a total capitalization of over four 
billions of dollars. These enormous combinations comprised 
one seventh of the manufacturing industry of the United 
States, one twentieth of the total wealth of the nation, nearly 
twice the amount of money in circulation in the country, and 
more than four times the capitalization of all the manufactur- 
ing consolidations that were organized between i860 and 1893. 
In rapid succession various concerns in the steel business com- 
bined, until in 1901 the United States Steel Corporation was 
organized with a capitalization of one bilUon four hundred 
million dollars, for the purpose of acquiring the stock of ten of 
the largest corporations in the world. The consolidation among 
the railroads was still more remarkable. Ninety per cent of the 
total railroad mileage fell into the control of fifty-seven rail- 
road systems, which together represented ninety-two per cent 
of the total capital stock and ninety-eight per cent of the total 
capitalization, including stock and bonds, of all the railroads in 
the country." ^ The McKinley Administration, which did prac- 
tically nothing under the Act, surrendered to the new device 
known as the "holding corporation"; and in his report for 1899, 
the Attorney-General said : " In all instances the Department has 



^ G. H. Montague's article, 3, 4, 
citing G. H. Montague: Trusts of 



To-day, 23 ; Moody: Manual of R. R. 
and Corporation Securities, 1900-09. 



XIII.] INTERSTATE COMMERCE ' 439 

been governed only by a sincere desire to enforce the law as it 
exists and to avoid subjecting the Government to useless ex- 
pense and all officers of the Government to humiliating defeat 
by bringing actions where there was a clear want of jurisdiction 
under the well-defined limits of federal jurisdiction so clearly 
laid down by the Supreme Court in cases already decided." 

President Roosevelt's Administration began September 14, Roosevelt 
1 90 1, and in 1903 occurred a panic which focused the eyes of a°^^ii°^- 
the public upon the vast industrial combinations, the vicissi- 
tudes of whose securities in the market, and the effect of their 
operations upon their competitors, their consumers, and the 
public generally, discredited the idea that consolidation in the 
form of merger was a universal solvent. In February, 1903, five 
hundred thousand dollars were appropriated to be expended 
in prosecutions under the Sherman Anti-Trust Act and the 
Interstate Commerce Act ^ by Attorney-General Knox, who was 
at once willing and able to win. In that year proceedings were 
begun under the Act in question against the Northern Secur- Northern 
ities Company, a "holding corporation "; and in March, 1904, deddonri904. 
a judgment was rendered by the Supreme Court in which it was 
held that Congress did not exceed its power under the com- 
merce clause of the Constitution in enacting the statute in 
question, declaring illegal every combination or conspiracy 
in restraint of interstate commerce, and forbidding attempts , 

to monopolize such commerce or any part of it, although such 
statute is construed to embrace a combination of stockholders 
of two competing interstate railway companies to form a stock- 
holding corporation which should acquire, in exchange for its 
own capital stock, a controlling interest in the capital stock of 
each of such railway companies. In a word, the Court held that | 
the Northern Securities Company was in violation of the Anti- I 
Trust Act, and declared illegal all combinations in restraint / 
of trade effected through the device of "holding corporations." / 
While concurring in the result, Mr. Justice Brewer — who Justice Brew- 
was with the majority of the Court in United States v. Trans- qualiSon°* 
Missouri Freight Association and like cases that followed it — 
deemed it necessary to say that, still adhering to "the convic- 
tion that those cases were rightly decided, I think that in some 
respects the reasons given for the judgments cannot be sus- 
* Act of February 25, 1903. 



440 



THE AMERICAN CONSTITUTION 



[Ch. 



Justice 

White's 

dissent. 



Justice 

Holmes's 

dissent. 



tained. Instead of holding that the Anti-Trust Act included all 
contracts, reasonable or unreasonable, in restraint of inter- 
state trade, the ruling should have been that the contracts 
there presented were unreasonable restraints of interstate 
trade, and as such within the scope of the Act. That Act, as 
appears from its title, was leveled only at * unlawful restraints 
and monopolies.' Congress did not intend to reach and de- 
stroy those minor contracts in partial restraint of trade which 
the long course of decisions at common law had affirmed were 
reasonable and ought to be upheld. The purpose rather was 
to place a statutory prohibition, with prescribed penalties and 
remedies, upon those contracts which were in direct restraint 
of trade, unreasonable, and against public policy. . . . Further, 
the general language of the Act is also limited by the power 
which each individual has to manage his own property and de- 
termine the place and manner of its investment. Freedom of 
action in these respects is among the inalienable rights of every 
citizen." That final statement is the key to the analysis of the 
two vigorous dissenting opinions prepared by Mr. Justice White 
and Mr. Justice Holmes. The former rests upon the conten- 
tion that Congress has no constitutional authority to curtail 
"the power which each individual has to manage his own pro- 
perty and determine the place and manner of its investment," 
to the extent indicated in the judgment of the Court. "True, 
the instrumentalities of interstate commerce," says Mr. Just- 
ice White, "are subject to the power to regulate commerce, 
and therefore such instrumentalities when employed in inter- 
state commerce may be regulated by Congress as to their use 
in such commerce. But this is entirely distinct from the power 
to regulate the acquisition and ownership of such instrument- 
alities, and the many forms of contracts from which such 
ownership may arise. . . . All the rights of ownership in rail- 
roads belonging to corporations organized under the state law, 
the power to acquire the same, to mortgage, to foreclose mort- 
gages, to lease and the contract relations concerning them, 
have, from the foundation, had their sanction in the legislation 
of the several states." The latter rests upon the contention that 
conceding the power of Congress, which Mr. Justice White 
denies, the Anti-Trust Act, "when properly interpreted, does 
not embrace the acquisition and ownership of such stock. ' ' "In 



XIII.] INTERSTATE COMMERCE 44I 

view of my interpretation of the statute," says Mr. Justice 
Holmes, " I do not go further into the question of the power of 
Congress. That has been dealt with by my brother White, and 
I concur, in the main, with his views." 

So disquieting was the effect of the sweeping victory of the Combinations 
Government in the Northern Securities Company Case, which ^^^ ^° F°^ 

^ •' ' distinguished 

put outside of the law a vast number of industrial concerns from those 
of the first importance, that the Administration hastened to *^^* ^° ^^^' 
assure the business community that it would be used with 
justice and moderation; that only "bad" trusts would be sin- 
gled out for prosecution. In his annual message in 1905 Presi- 
dent Roosevelt said: "It is generally useless to try to prohibit 
all restraint on competition, whether this restraint be reason- 
able or unreasonable; and where it is not useless it is generally 
hurtful" ; and in his annual message in 1906 he said, while dis- 
cussing the working of the Anti -Trust Act: "The actual work- 
ing of our laws has shown that the effort to prohibit all com- 
binations, good, or bad, is noxious where it is not ineffective. 
Combination of capital, like combination of labor, is a neces- , . • , 
sary element in our present industrial system. It is not possible ^''' I 
completely to prevent it; and if it were possible, such complete 
prevention would do damage to the body politic. ... It is 
unfortunate that our present laws should forbid all combina- 
tions instead of sharply discriminating between those com- 
binations which do good, and those combinations that do 
evil." In September of the year last named, Judge Taft, in a 
speech at Bath, Maine, in describing the Anti-Trust Act, said : 
"Construed literally, this statute could be used to punish Danger of lit- 
combinations of the most useful character, like partnerships ^5^^ constmc- 
and other business arrangements conceded by all to be legiti- 
mate and proper; and the difficulty in its construction has 
been to draw a line effective to suppress the real evil aimed 
at by the legislature and to furnish a proper and clear rule for 
the guidance of business men while not interfering with legiti- 
mate combinations which Congress has no purpose to prevent." 
In opening his campaign at Columbus, Ohio, August 19, 1908, 
Judge Taft said: "I am inclined to the opinion that the time Amendment 
is near at hand for an amendment of the Anti-Trust Law, defin- °} Anti-Trust 

, ., , ., . ,.,... , , , Act proposed. 

ing m great detail the evils against which it is aimed and mak- 
ing clearer the distinction between lawful agreements reason- 



442 



THE AMERICAN CONSTITUTION 



[Ch. 



Case of Ameri- 
can Tobacco 
Co., 1908. 



Act termed 
revolutionary 



ably restraining trade and those which are pernicious in their 
effect, and particularly denouncing the various devices for 
monopolizing trade which prosecutions and investigations have 
shown to be used in actual practice. The decisions of the courts 
and the experience of executive and prosecuting officers make 
the framing of such a statute possible." 

In the same year the Circuit Court of Appeals declared the 
American Tobacco Company and its allied concerns a combina- 
tion in violation of the Anti-Trust Act, Judge Lacombe saying 
in his opinion,^ after quoting the terms of section i : — 

That declaration, ambiguous when enacted, is, as the writer believes, 
no longer open to construction in inferior federal courts. Disregarding 
the various dicta and following the several propositions which have been 
approved by successive majorities of the Supreme Court, this language 
is to be construed as prohibiting any contract or combination whose 
direct effect is to prevent the free play of competition, and thus tend 
to deprive the country of the services of any number of independent 
dealers, however small. As thus construed, the statute is revolutionary. 
By this it is not intended to imply that the construction is incorrect. 
When we remember the circumstances under which the Act was passed, 
the popular prejudice against large aggregations of capital, and the loud 
outcry against combinations which might in one way or another inter- 
fere to suppress or check the full, free, and wholly unrestrained com- 
petition which was assumed, rightly or wrongly, to be the very "life of 
trade," it would not be surprising to find that Congress had responded 
to what seemed to be the wish of a large part, if not all, of the commun- 
ity, and that it intended to secure such competition against the opera- 
tion of the natural laws. The Act may be termed revolutionary, 
because before its passage the courts had recognized a "restraint of 
trade " which was held to be unfair, but permissible, although it operated 
in some measure to restrict competition. By insensible degrees, under 
the operation of many causes, business, manufacturing, and trading 
alike has more and more developed a tendency toward larger and larger 
aggregations of capital and more extensive combination of individual 
enterprise. It is contended that under existing conditions in that way 
only can production be increased and cheapened, new markets opened 
and developed, stability in reasonable prices secured, and industrial 
progress assured. But every aggregation of individuals or corporations 
formerly independent, immediately upon its formation terminates an 
existing competition; whether or not some other competition may sub- 
sequently arise. The Act, as above construed, prohibits every contract 
or combination in restraint of competition. Size is not made the test. 
Two individuals, who have been driving rival express wagons between 
villages in contiguous states, who enter into a combination to join 
forces and operate a single line, restrain an existing competition, and 

* United States v. American Tobacco Co., 164 Fed. 700, 701. 



XIIL] 



INTERSTATE COMMERCE 



443 



A popular 
error assailed. 



it would seem to make little difference whether they make such a com- 
bination more effective by partnership or not. 

In juxtaposition with that view will be placed a contrary Review by 
view^ recently expressed by an eminent jurist and practical ^orawetz. 
man of large affairs, who, after quoting sections i and 2 of the 
Act in question, declares that — 

On their face these prohibitions appear to enforce only established 
doctrines of the common law. Certainly they do not seem revolutionary 
or in conflict with sound political and economic policies. However, an 
idea has become prevalent that the Anti-Trust Act has introduced into 
the law some novel doctrine inconsistent with the successful conduct of 
trade. It has been asserted that, if enforced consistently, the Act would 
revolutionize modern business methods and, by making it impossible to 
carry on business effectively, would check our industrial progress and re- 
strain the trade and commerce which it was designed to protect. In my 
opinion, this is a mistake. It is true that there are dicta in some of the 
opinions of the Judges which, taken alone, may furnish some basis for 
these views and these fears; but the mere dicta of Judges are not binding 
as precedents. Only actual decisions control in future cases, and it will 
be found that, with one exception, the actual decisions of the Supreme 
Court are consistent with a harmonious construction of the Act which 
would effect its purpose without interfering with any business methods 
that ever have been regarded as lawful and proper. 

The cases arising under the Anti-Trust Act may be divided into four 
classes, viz.: 

I. Cases involving contracts, combinations or conspiracies to restrain the 
trade or commerce of other persons, or of the public generally. 

Contracts, combinations or conspiracies by means of physical force, 
or by means of threats of damage, or boycotting, to , prevent other 
persons, or the public generally, from carrying on trade or commerce, 
are illegal at common law, and it is eminently proper that contracts, 
combinations, or conspiracies of that character, when in restraint of 
interstate or international trade or commerce, should be prohibited by 
an Act of Congress furnishing effective remedies for its enforcement. 

The Supreme Court has decided that the first section of the Anti- 
Trust Act applies to contracts, combinations, or conspiracies of that 
character. Thus, in the Debs case (158 U. S. 564) the Supreme Court Debs case, 
decided that a combination or conspiracy of certain railway employees 
to stop the operation of railways that were highways of interstate com- 
merce was a restraint of interstate trade or commerce within the mean- 
ing of the Act. The stoppage or obstruction of the highways of inter- 
state commerce necessarily operated as a direct restraint of the inter- 
state commerce of the public generally. 



Cases divided 
into four 
classes. 



^ A paper entitled "The Supreme 
Court and the Anti-Trust Act," in 



the New York Times, October 9, 
1910, by Mr. Victor Morawetz. 



444 



THE AMERICAN CONSTITUTION 



[Ch. 



Hatters' case. 



The Traffic 
cases. 



An important 
distinction. 



In Loewe v. Lawlor (208 U. S. 274), sometimes called the Danbury 
Hatters' case, the Supreme Court decided that a combination or conspir- 
acy by means of a boycott to stop interstate trade or commerce between 
certain manufacturers and their customers was in restraint of interstate 
trade or commerce. In this case there was not, as there was in the Debs 
case, a physical obstruction of trade or commerce, but the purpose and 
the effect of the combination or conspiracy were to restrain other per- 
sons from engaging in interstate commerce by threatening damage to 
their business until certain demands of those entering into the combina- 
tion or conspiracy were complied with. 

Interstate trade or commerce also may be restrained by a contract or 
combination operating as a peaceable trade boycott, without the use of 
force or threats of damage. In Montague v. Lowry (193 U. S. 38), the 
Supreme Court decided that the Anti-Trust Act rendered unlawful the 
formation of an association of the manufacturers of tiles throughout 
the United States and certain dealers in tiles in or near San Francisco, 
under an agreement that the manufacturers would not sell their pro- 
ducts on any terms to persons who were not members of the association 
and that the dealers who were members would not sell to non-members 
except at specified prices that were more than fifty per cent higher than 
the prices payable by members. . . . 

2. Cases involving contracts or combinations of public carriers to increase 
the rates or tolls payable by the public in respect of interstate commerce. 

The railways are the principal highways of interstate trade and com- 
merce. If, as it was decided in the Debs case, a combination or conspir- 
acy by physical force to stop the operation of interstate railways would 
be in violation of the first section of the Act because in restraint of the 
interstate commerce of the public, it would seem to follow, for similar 
reasons, that a combination or conspiracy, without resort to physical 
obstruction, to render the transaction of interstate commerce upon the 
railways more difficult or more costly would be in restraint of interstate 
commerce within the meaning of the Act. In the Trans-Missouri Freight 
Association case (166 U. S. 290), and in the Joint Traffic Association 
cases (171 U. S. 505, 565, 569), the Supreme Court held that contracts or 
combinations among railway companies to maintain rates upon com- 
petitive interstate traffic operated as a restraint of interstate trade or 
commerce. It was contended that a combination to maintain rates upon 
competitive business could not fairly be considered in restraint of com- 
merce unless the rates themselves were unreasonable; but the Court held 
that, in such a case, it would not inquire into the reasonableness of the 
rates and that the combination must be deemed in restraint of com- 
merce because its natural and direct effect was to maintain at a higher 
level than otherwise would prevail the rates payable by the public as 
a condition of carrying on interstate trade or commerce. 

These Traffic cases are not authority for the doctrine that a contract 
or combination among merchants or manufacturers would constitute 
a restraint of interstate commerce, prohibited by the first section of the 



XIII.] 



INTERSTATE COMMERCE 



445 



Anti-Trust Act, on the sole ground that the effect of the contract or 
combination was to restrict competition among the parties. Railway 
companies furnish the transportation necessary to enable the public to 
engage in interstate trade or commerce. But they are not themselves en- 
gaged in interstate trade or commerce. In the Traffic cases the stoppage 
of competition was in restraint of interstate commerce and unlawful, not 
because it restrained commerce of the railway companies which made 
the contracts or entered into the combinations, but because its effect 
was to restrain the interstate commerce of the public by imposing addi- 
tional burdens upon this trade or commerce. As stated by the Supreme 
Court, the natural and direct effect of such contracts or combinations 
was to maintain rates at a higher level than otherwise would prevail. 

In the Northern Securities case the Supreme Court held that a com- 
bination to acquire and to vest in a holding company a majority of the 
stocks of two railway companies operating parallel and competing lines 
that were highways of interstate commerce was in restraint of interstate 
commerce within the meaning of the first section of the Anti-Trust Act. 
If, as decided in the Traffic cases, a combination among railway com- 
panies by agreement to maintain rates was in restraint of interstate 
commerce within the meaning of the Act, because the natural and direct 
effect of the combination was to maintain rates at a higher level than 
otherwise would prevail, it seems to follow, as a necessary sequence, that 
a combination to bring about the same result by uniting the ownership of 
two parallel and competing interstate lines would otherwise be unlaw- 
ful, whether the combination be in the form of a corporation, an unin- 
corporated joint-stock company, an ordinary partnership, or a trust. 

Prior to the decision of the Traffic cases there had been many contracts 
and combinations to maintain rates in respect of competitive traffic, or 
to divide or to pool competitive traffic; but such agreements never 
were regarded as practically enforceable, and there is little doubt that 
even prior to the passage of the Anti-Trust Act they were unlawful. 
Whatever view may be taken of the correctness of the decision of 
the Supreme Court in the Traffic cases, their importance has been 
greatly diminished by the enforcement of the laws prohibiting rail- 
way companies from granting secret rebates or from departing from 
their published rate schedules. 

It has been contended that uniformity of rates upon competing lines 
as to traffic between the same points is a business necessity, and that 
under the decisions in the Traffic cases the railway companies cannot 
lawfully consult among themselves for the purpose of establishing this 
necessary uniformity of rates. In the opinion of the writer the Supreme 
Court has not decided and is not likely to decide that the An ti -Trust Act 
prohibits consultations among railway officials for the purpose of adjust- 
ing their rate schedules and establishing uniform rates as to competitive 
business, provided that the companies retain their freedom to modify 
these rates and do not agree to maintain them. In the Traffic cases the 
restraint of interstate commerce did not arise from the fact that the rail- 
way companies had consulted each other for the purpose of establish- 



Holding 
companies. 



PooUng 
contracts. 



Necessity for 
uniformity of 
rates. 



446 



THE AMERICAN CONSTITUTION 



[Ch. 



ing uniform rates, but it arose from the fact that they had entered into 
agreements or combinations to maintain rates by preventing the several 
companies from changing the rates as so established. 

3. Cases involving contracts or combinations that, without restraining the 
trade or commerce of others and without monopolizing or attempting 
to monopolize trade or commerce, simply diminish competition among 
those contracting or combining. 
Contracts The Supreme Court never has decided that contracts or combinations 

diminishing of this character are prohibited by the Anti-Trust Act. Although dicta 
competition. ^lay be found in the opinions of the Court which, taken without regard 
to the context, might seem to indicate that the Court considered that all 
contracts and combinations restricting competition in any degree were 
prohibited by the Anti-Trust Act, no such conclusion can fairly be de- 
duced from these opinions when considered in their entirety. In some 
of the cases the Court held that the contracts or combinations in ques- 
tion were unlawful on the ground that they were "in restraint of trade 
or commerce," and the Court did not specifically assign as the ground of 
its decision that the effect or purpose of the contracts or combinations 
was to monopolize a branch of interstate trade or commerce in violation 
of the second section of the Act; but it is apparent that the Court did not 
proceed on the ground that every restriction of competition would con- 
stitute a prohibited restraint of commerce, without regard to the degree 
to which competition was eliminated. If the Court had been of opinion 
that every restriction of competition was in violation of the Act, it is not 
likely that the Court would have labored, as it did, to show that the 
restriction of competition was carried to such an extent as to monopolize 
Addyston Pipe trade or commerce. Thus, in the case of the Addyston Pipe Company 
Co. case. (175 U. S. 21 1) it appeared that nearly all the manufacturers of iron pipe 

within thirty-six states and territories had combined under an agree- 
ment to apportion among the members of the combination the trade in 
iron pipe within the prescribed part of the United States. The purpose 
of the combination was, by establishing a community of interest among 
the manufacturers, to destroy competition among them and to mono- 
polize for their benefit the trade in iron pipe. Although in its opinion 
the Court referred to this transaction as " in restraint of commerce," the 
transaction undoubtedly constituted monopolizing within the meaning 
of the second section of the Anti-Trust Act, and if the restriction of com- 
petition had not been carried so far as to constitute monopolizing in vio- 
lation of the second section, probably it would not have been adjudged 
to be illegal. A combination, by a partnership or otherwise, to establish 
a community of interest among manufacturers controlling only a minor 
share of the trade in iron pipe probably would not have been condemned. 
As pointed out above, the cases involving rate agreements among rail- 
way companies are not authority for the doctrine that contracts or com- 
binations among merchants or manufacturers which, without mono- 
polizing commerce, simply restrict competition among those contracting 
or combining, are in violation of the Anti-Trust Act. The decisions in 
the railroad cases were based on the ground that the natural and direct 



XIII.] 



INTERSTATE COMMERCE 



447 



effect of the contracts or combinations was to restrain the trade or com- 
merce of the public by increasing the tolls upon the highways of inter- 
state commerce. 

At common law, contracts and combinations of the class now under 
consideration were not unlawful, with this exception: a contract of an 
individual not to exercise his craft or trade was held to be unreasonable, 
contrary to public policy, and void, unless the contract was incidental to 
carrying out some fair and lawful transaction, such as the sale of a busi- 
ness or good-will. This exception was for the purpose of protecting the 
personal liberty of individuals, and in considering the effect of the Anti- 
Trust Act it is not material. That Act was not passed to protect indi- 
viduals against the consequences of their own acts, but, as indicated by 
its title, was designed to enforce the broad policy of protecting the trade 
and commerce of the community against unlawful restraints and mono- 
polies. Probably Congress would have no constitutional power to 
pass a law merely for the regulation of private rights, by prohibiting 
individuals under criminal penalties from entering into mutual contracts 
or combinations restricting their own power to engage in interstate 
trade or commerce. 

Many contracts and combinations that restrict competition simply 
among those contracting or combining are necessary to the successful 
conduct of trade and commerce, and such contracts and combinations 
always have been considered reasonable and proper throughout the 
civilized world. If such contracts were prohibited by the Anti-Trust 
Act, it would be impossible, without incurring civil and criminal liabil- 
ities, to carry on trade and commerce in the United States. Certainly 
Congress never intended to destroy trade and commerce by an Act 
entitled "An Act to protect trade and commerce against unlawful 
restraints and monopolies." . . . 

Therefore, the first section should be construed as prohibiting only 
contracts, combinations, and conspiracies to restrain the liberty or power 
of others, or of the public generally, to carry on interstate and inter- 
national commerce freely and without hindrance. The second section 
should be construed as dealing with the subject of competition and as 
prohibiting contracts, combinations, or conspiracies to destroy competi- 
tion to such an extent as to constitute monopolizing as hereafter defined. 



Contracts not 
unlawful at 
common law. 



When restrict- 
ing contracts 
necessary. 



4. Cases involving attempts to monopolize, or combinations or conspiracies 
to monopolize any part of interstate or international trade or commerce. 
In construing and enforcing the Anti -Trust Act the principal difficulty 
is to determine the precise meaning of the words "to monopolize" as 
used in the second section of the Act. The question is not whether indus- 
trial monopolies are harmful or beneficial to the community, or whether 
the Anti-Trust Act embodies a sound economic or governmental policy. 
Judges cannot properly allow themselves to be influenced by their own 
views upon questions of political economy or of state policy. It is their 
duty to give effect to the will of the legislature as declared in the 
statutes. 



Meaning of 
the words "to 
monopolize." 



448 



THE AMERICAN CONSTITUTION 



[Ch. 



The outcome 
of collectivism. 



I 

% 
Growth-of 
state power 
necessarily 
curtails indi- 
vidual rights. 



Justicf 



foreca|t. 



No more comprehensive or scientific statement than the fore- 
going has so far been made of the problem of problems that 
reaches down to the very roots of our national life as it now 
exists. That problem is the outcome of the mighty transition 
that has taken place from individualism to collectivism. As 
stated heretofore in the words of another: "The power of 
groups of men organized by incorporation as joint-stock com- 
panies, or of small knots of rich men acting in combination, has 
developed with unexpected strength in unexpected ways, over- 
shadowing individuals and even communities, and showing 
that the very freedom of association which men sought to 
secure by law when they were threatened by the violence of 
potentates may under the shelter of the law ripen into a new 
form of tyranny." As that new form of tyranny has devel- 
oped, there has been a corresponding and counteracting devel- 
opment in state power, resulting in what Judge Baldwin has 
happily termed "the narrowing circle of individual rights." 
As stated already, the new conditions which have driven the 
individual to depend as never before for safety upon state 
power have compelled that power to assert as never before its 
sovereign right to curtail the personal and property rights 
of all persons, natural and artificial, when the public welfare 
is involved. If in 1895, when the Supreme Court rendered its 
judgment in United States v. Knight Co., generally known 
as the "Sugar Trust case," it had been more thoroughly im- 
pressed with the fact that the results of the silent revolution 
that has taken place must now find expression through judge- 
made law, a different conclusion would, no doubt, have been 
reached. Mr. Justice Harlan foreshadowed all that was to 
come when, in his dissenting opinion in that case, he said: 
"This view of the scope of the Act leaves the public, so far as 
national power is concerned, entirely at the mercy of combina- 
tions which arbitrarily control the prices of articles purchased 
to be transported from one state to another. I cannot assent 
to that view. In my judgment, the General Government is not 
placed by the Constitution in such a condition of helplessness 
that it must fold its arms and remain inactive while capital 
combines, under the name of a corporation, to destroy com- 
petition, not in one state only, but throughout the entire coun- 
try, in the buying and selling of articles — especially the neces- 



XIIL] INTERSTATE COMMERCE 449 

saries of life — that go into commerce among the states. . . . 
To the General Government has been committed the control of 
commercial intercourse among the states, to the end that it may 
be free at all times from any restraints except such as Congress 
may impose or permit for the benefit of the whole country. 
The common government of all the people is the only one that 
can adequately deal with a matter which directly and imper- 
iously affects the entire commerce of the country, which con- 
cerns equally all the people of the Union, and which, it must be 
confessed, cannot be adequately controlled by any one state." 
In 1897 that larger conception influenced the judgment ren- 
dered in United States v. Trans-Missouri Freight Association, 
and in 1904 it found full expression in the Northern Securities 
Company case. 

From the higher point of view thus attained, the Supreme How the finer 
Court is now in a position to solve, by the refined methods of f^°^°^ ^ 
judge-made law, a complex and far-reaching problem that can solved, 
hardly be dealt with successfully through the coarser methods 
of statutory legislation. If an attempt should be made so to 
amend the Act in question as to make clearer the distinction 
between lawful agreements reasonably restraining trade and 
those which are pernicious in their eff'ect, a fresh appeal to the 
courts for construction would be the only practical outcome. 
If the histories of Roman and English law prove anything Teachings of 
clearly, it is the fact that as the relations of advancing societies Roman and 
become more complex it is the trained hand of the jurisconsult 
rather than that of the legislator that must solve the finer pro- 
blems that arise out of them. No more difficult problems were 
ever presented to a judicial tribunal than those now pending 
before the Supreme Court of the United States? problems that 
are the outcome of a transition from individualism to collectiv- 
ism in a complex society governed by the most nicely balanced 
of all constitutions. The supreme control of the nation must 
be asserted over interstate and international trade, including 
all of its instrumentalities, without too great an abridgment 
of individual rights under the state constitutions. Such pro- 
blems can only be solved tentatively bit by bit, in the light of ex- 
perience. No attempt should be made to give to that part of 
the Act declaring illegal "every contract, combination, in the 
form of trust or otherwise, or conspiracy, in restraint of trade or 



450 



THE AMERICAN CONSTITUTION 



[Ch. 



Literal or 
strained con- 
structions to 
be avoided. 



Line dividing 
legitimate 
competitors 
from mono- 
polists. 



Use of imlaw- 
ful means. 



"Judicial in- 
clusion and 
exclusion." 

Meaning of 
the phrase "to 
monopolize." 



Montague v. 
Lowiy. 



commerce among the several states, or with foreign nations," 
a too literal or strained construction. The Act does not attempt 
to prohibit contracts or combinations that restrain competition 
in trade or commerce. The word "competition" does not ap- 
pear in the Act. If it had been the intention of Congress to pro- 
hibit all contracts and combinations that in any degree dimin- 
ish or restrict competition in trade or commerce, it is likely 
that such a purpose would have been expressed in definite 
terms. Under such conditions the judicial power should de- 
fine as clearly as possible the line dividing the legitimate com- 
petitors, who combine fairly and justly to excel their rivals in 
competition through the employment of normal competitive 
methods, from the monopolists, who seek to suppress competi- 
tion, and thereby to control prices, by preventing, through un- 
lawful means, other concerns from entering the trade in com- 
petition with them. The prohibition should apply not so much 
to the form the combination may assume, or to the power its 
efficiency may develop, as to the use of unlawful means to 
attain such form or to increase such power. Perhaps it will be 
wise in attaining that result to again employ the convenient 
rule established in Davidson v. New Orleans, in which the 
Supreme Court said that in order to avoid "the imminent risk 
of a failure to give any definition which would be at once per- 
spicuous, comprehensive, and satisfactory," it would adopt 
" the gradual process of judicial inclusion and exclusion, as the 
cases presented for decision shall require, with the reasoning 
on which such decisions may be founded." 

It will then be necessary to give to the phrase, to "monopo- 
lize, or attempt to monopolize, or combine or conspire with any 
other person or persons to monopolize, any part of the trade or 
commerce among the several states, or with foreign nations," a 
reasonable and well-ascertained meaning. As commerce cannot 
be monopolized as to all articles, at all places, it can be mono- 
polized, as a rule, only as to some particular articles, and only 
at certain places or markets. As the Act in question prohibits 
monopolizing "any part" of interstate or international com- 
merce, it appears that Congress intended to prohibit the mono- 
polizing of such commerce in any article as to any part of the 
United States. It was therefore decided in Montague v. Lowry 
that a combination monopolizing trade or commerce in unset 



XIII.l INTERSTATE COMMERCE 451 

tiles between a part of California and other states was in viola- 
tion of the Act. From that it does not follow that a combina- 
tion among all the merchants or all the manufacturers dealing 
in, or producing, an article of commerce in a particular state or 
locality would necessarily be in restraint of interstate or inter- 
national commerce. As the term "to monopolize" is not so 
definite as to render it easy to determine with certainty in every 
case whether it applies, the question must ever recur whether 
in a particular case there was such a destruction of competition 
and such acquisition of control of commerce as to constitute 
monopolizing commerce as generally understood. It seems to 
be taken for granted that the term "to monopolize " would not How much of 
apply to an acquisition of control of less than one half of the ^^ commerce 

. , m an article 

commerce in an article, the commerce in the greater part re- must be mono- 
maining in the hands of competitors. If, however, the control po^^d ? 
of substantially more than one half of the commerce in an arti- 
cle is acquired, the question then arises whether the elimin- 
ation of competition has been carried to a degree to render the 
term applicable. As Congress has indicated no test as to this 
important branch of the subject, the courts must find a working 
rule by which they can ascertain in each case whether the re- 
striction of competition and the concentration of control of com- 
merce have been carried far enough to become injurious to the 
public by conferring upon a person or group of individuals the 
power to control the price of some article of commerce. In the 
border-line cases that must arise, the question will be largely The question 
one of degree. "Under a complex civilization the lawfulness of °^ <i«8ree. 
acts often must be made to depend upon complex conditions 
and cannot be determined by simple rules that can be applied 
without the exercise of discretion and in a more or less mechan- 
ical manner. As has been pointed out by the Supreme Court, 
even in giving effect to constitutional provisions, questions of 
degree often are the controlling ones (Wisconsin Railroad Co. 
V. Jacobson, 179 U. S. 301). Similarly, in determining the law- 
fulness of acts of individuals, it often is necessary to pass upon 
questions of degree, or to determine what, under all the circum- 
stances of a given case, is reasonable. Thus the courts may be 
called upon to pass upon the reasonableness of railroad rates, 
having regard to a multitude of conditions, including the rela- 
tive adjustment of rates between different localities. Such an 



452 



THE AMERICAN CONSTITUTION 



Again the rule 
of "inclusion 
and exclu- 
sion." 



Summary. 



inquiry commonly would present practical difficulties at least 
as great as those presented by aninquiry whether a given trans- 
action destroyed competition in interstate trade or commerce 
to such an extent as to put an end to reasonably competitive 
conditions and to constitute what is called 'monopolizing.'"^ 
In the presence of such difficulties it would seem to be wise for 
the courts, instead of attempting to formulate a rigid rule, to 
again resort to "the gradual process of judicial inclusion and 
exclusion," determining, in the light of the common under- 
standing of the word "monopolizing," whether or no in the 
particular case there has been such a destruction of competition 
as to put an end to reasonably competitive conditions. 

No excuse should be necessary for this somewhat prolonged 
statement of the most complex and far-reaching problem that 
has so far arisen out of the growth of the American Common- 
wealth. In the words of Savigny, "As in the life of individual 
men no moment of complete stillness is experienced, but a con- 
stant organic development, such also is the case in the life of 
nations, and in every individual element in which this collect- 
ive life consists." In the life of the American people the "or- 
ganic development " has been abnormally rapid, and the conse- 
quent changes have been correspondingly great. The most im- 
portant phase of that organic development is that involved in 
the transition from individualism to collectivism out of which 
the problem in question arose. How can the constitutional 
machinery be so readjusted as to meet the changed conditions? 
Just as the American Constitution is the weakest in its lack 
of power to adapt itself to changed conditions through such 
formal amendments as its cumbrous machinery provides, it 
is the strongest in its capacity to grow and to adapt itself to 
changed conditions through the subtle power of a Supreme 
Court that can not only annul a national law, but so remould 
it and adapt it to changed conditions as to make it an effective 
working rule. There is no reason to believe that that tribunal, 
which has been able to solve every great problem submitted 
to it, save one that was not in its nature justiciable, will fail to 
solve the pending problem preeminently justiciable. 
* Mr. Morawetz in article cited above. 



CHAPTER XIV 

THE OUTCOME OF OUR GROWTH 

When the time arrived for this nation to be born, a solemn Birthtime of 
ceremonywas arranged and a herald appointed who announced ^^^ nation. 
the event in a Declaration which has become a part of the 
world's history. Every detail in the marvelous process of 
growth which has taken place since that time has been recorded 
with a fullness never before known in the life of any people. 
Beginning with 1790 there have been thirteen decennial cen- 
suses, each one of which has been more complete and com- 
prehensive than its predecessor. While the data upon which 
generalizations may be based have been thus widening, Political 
Science has been teaching as never before the method by which 
the growth of political communities should be studied and 
expounded. Against such advantages in favor of the making Rapidity of its 
of accurate and comprehensive generalizations stands the fact aeveJop™«°*^- 
that the development of no nation was ever so rapid, so vast, 
so complex, — the dissolving views of change have followed 
each other like the pictures in a panorama. "I might plead," 
says Mr. Bryce, " that America changes so fast that every few 
years a new crop of books is needed to describe the new face 
which things have put on, the new problems that have ap- 
peared, the new ideas germinating among her people, the new 
and unexpected developments for evil as well as good of which 
her established institutions have been found capable."^ And 
yet despite such difficulties certain products of the growth 
which has so far taken place stand out so clearly and distinctly 
defined that they cannot be mistaken. 

The least difficult part of the summing-up now to be made is Area and 
that which involves purely material expansion. According to population of 
the census of 1790 the thirteen original states and two territo- 
ries had at that time a population of 3»673»570 distributed as 
follows: Delaware, 59,096; Pennsylvania, 434»373; New Jersey, 
184,139 ; Georgia, 82,548 ; Connecticut, 237,946 ; Massachusetts, 
The American Commonwealth, i, 2. 



454 



THE AMERICAN CONSTITUTION 



[Ch. 



378,787; Maryland, 319,728; South Carolina, 249,073; New 
Hampshire, 141,885; Virginia, 747,610; New York, 340,120; 
North Carolina, 393,751 ; Rhode Island, 68,825; Southwestand 
Northwest Territories, 35,691. While only 326,378 square miles, 
less than forty per cent of their original possessions, are now 
included within the thirteen original states, the Republic began 
its career as a nation nominally possessing an area, derived 
through the peace treaty of 1783, of 843,246. To that the fol- 
lowing additions have been made : — 

Subsequent 1803. Louisiana Purchase 875,025 

acquisitions. 1819. Florida Purchase 70.107 

1845. Texas Annexation 389.795 

1846. Oregon Country 288,689 

1848. Mexican Cession 523,802 

1853. Gadsden Purchase 36,211 

1867. Alaska 599.446 

1897. Hawaiian Islands 6,740 

1898. Porto Rico 3,600 

1898. Guam 175 

1899. Philippine Islands 143,000 

1899. Samoan Islands 73 

1901. Additional Philippines 68 

Total in square miles 3.779.977 * 



Existing inejony-s 


tx existing states an 


a territories, ineir po 


putaiion, 


conditions. 


and the total area occupied in 1910 






Ratified the 


Area in square 


Population 




Constitution 


miles, 1 9 10' 


tn 1910 


Delaware 


1787 


2,370 


202,322 


Pennsylvania 


1787 


45.126 


7,665,111 


New Jersey 


1787 


8,224 


2,537,167 


Georgia 


1788 


59.265 


2,609,121 


Connecticut 


1788 


4.965 


1,114,756 


Massachusetts 


1788 


8,266 


3,366,416 


Maryland 


1788 


12,327 


1.295.346 


South Carolina 


1788 


30,989 


1,515.400 


New Hampshire 


1788 


9.341 


430,572 


Virginia 


1788 


42,627 


2,061,612 


New York 


1788 


49,204 


9.113.614 


North Carolina 


1789 


52,426 


2,206,287 


Rhode Island 


1790 


1,248 


542,610 



* These generally accepted figures 
have been slightly changed by the 
last census, as will appear from the 
following tables. 



* These figures include also the 
water area. 



XIV.] 



THE OUTCOME OF OUR GROWTH 



455 



States subsequently admitted, 


in the order of their admission Existing 








conditions. 




Date 


Area in square 


Population 




admitted 


miles, 1910* 


in 1910 


Vermont 


1791 


9.564 


355,956 


Kentucky 


1792 


40,598 


2,289,905 


Tennessee 


1796 


42,022 


2,184,789 


Ohio 


1803 


41,040 


4,767,121 


Louisiana 


1812 


48,506 


1,656,388 


Indiana 


1816 


36,354 


2,700,876 


Mississippi 


1817 


46,865 


1.797.114 


Illinois 


1818 


56,665 


5.638,591 


Alabama 


1819 


51.998 


2,138,093 


Maine 


1820 


33.040 


742,371 


Missouri 


1821 


69,420 


S»293,335 


Arkansas 


1836 


53.335 


1.574,449 


Michigan 


1837 


57.980 


2^10,173 


Florida 


1845 


58,666 


752,619 


Texas 


1845 


265,896 


3.896,542 


Iowa 


1846 


56,147 


2,224,771 


Wisconsin 


1848 


56,066 


2,333.860 


California 


1850 


158,297 


2,377.549 


Minnesota 


1858 


84,682 


2,075,708 


Oregon 


1859 


96,699 


672,765 


Kansas 


1861 


82,158 


1,690,949 


West Virginia 


1863 


24,170 


1,221,119 


Nevada 


1864 


110,690 


81,875 


Nebraska 


1867 


77.520 


1,192,214 


Colorado 


1876 


103,948 


799,024 


North Dakota 


1889 


70,837 


577,056 


South Dakota 


1889 


77,615 


583,888 


Montana 


1889 


146,997 


376,053 


Washington 


1889 


69,127 


1,141,990 


Wyoming 


1890 


97,914 


145,965 


Idaho 


1890 


83,888 


325.594 


Utah 


1895-90 


84,990 


373,351 


Oklahoma 


1907 


70,057 


1,657,155 


New Mexico* 




122,634 


327.301 


Arizona 




113.956 


204,354 




Outlying . 


Possessions 






Date of 


Area in square 


Population 




accession 


miles, 1910^ 


in 1910 


Alaska 


1867 


590,884 


64.356 


Hawaii 


1898 


6,449 


191,909 


Guam 


1899 


201 


io,o8o« 


Philippines 


1899 


119,542 


7,635,426* 


Porto Rico 


1899 


3.435 


1,1 18,012 


Samoa 


1900 


81 


6,832* 



* Includes water area. 
' New Mexico and Arizona are 
completing the process which will 



soon entitle them to statehood. 

* Estimated. 

* Census of 1903. 



456 

Summary. 



THE AMERICAN CONSTITUTION 

AREA OF THE UNITED STATES* 

Area, square miles 



[Ch. 





Date 


Land 


Water 


Total 


Original Territory 


1790 


820,377 


22,878 


843,255 


Louisiana Purchase 


1803 


868,896 


11,589 


880,485 


Disputed Territory 


1803 


10,518 


402 


10,920 


Florida 


1819 


54,861 


3,805 


58,666 


Texas 


1845 


386,040 


3.712 


389,752 


Oregon Territory 


1846 


281,251 


4,085 


285,336 


Mexican Cession 


1848 


520,967 


6,155 


527,122 


Gadsden Purchase 


1853 


31,249 


4 


31.253 


Total 




2,974.159 


52,630 


3,026,789 



Contmental United States 

Alaska 1867 

Hawaii 1898 

Guam 1899 

Philippines 1899 

Porto Rico 1899 

Samoa 1900 

Total 



Total area * 
3,026,789 

590,884 

6,449 

201 

119,542 

3,435 

81 

3,747,381 



POPULATION OF THE UNITED STATES 

Total Area of Enumeration, Continental United States, and Noncontiguous 
Territory: 19 10 and 1900 





1910 


1900 


The United States (total area 


of enumeration) 


93,402,151 


77,256,6302 


Continental United States , . 


91,972,266 
1,429,885 


75,994,575 
1,262,055 


Noncontiguous territory 









Alaska 

Hawaii 

Porto Rico 


64,356 
191,909 

I,H8,0I2 

1 

55,608 


63,592 
154,001 

953,243' 
91,219 


Persons in military and naval 
tioned abroad 


service 


sta- 





* Includes water area. 
2 Includes 953,243 persons enum- 
erated in Porto Rico in 1899. 



* According to the census of Porto 
Rico, taken in 1899 under the direc- 
tion of the War Department. 



XIV.l THE OUTCOME OF OUR GROWTH 457 

The rate of increase from 1900 to 1910 was 20.9 per cent for 
the total area of enumeration and 21 per cent for continental 
United States. It will be noted that Table I does not cover 
other possessions of the United States than the ones mentioned. 
Including the population of the Philippine Islands, as enumer- 
ated by the census of 1903 under the direction of the War 
Department, 7,635,426, and adding estimates for the islands 
of Guam and Samoa and the Canal Zone, the total population 
of the United States and possessions is about 101,100,000.^ 

In breaking away from the mother country, the English col- Constitutional 
onies in America made an original contribution to the Science American^' *° 
of Politics which has deeply affected their entire after history, vention. 
It has ever been an elementary principle of American consti- 
tutional law that every state legislature is endowed by its very 
nature with the omnipotence of the English Parliament, save 
so far as that omnipotence is restrained by express constitu- 
tional limitations. That principle embodies the fundamental 
difference that divides two kindred political systems, the one 
resting on the sovereignty of the people as expressed in written 
constitutions, the other on the sovereignty of Parliament. 
Such limitations, of which the European world knew nothing, 
grew naturally out of the process through which American 
legislatures came into existence. From the very beginning Powers of co- 
the powers of the colonial assemblies were more or less limited I'J^'^l.^^-!^' 

^ bhes limited 

through the terms of the charters by which such assemblies by charters. 
were either created or recognized. In colonial times, if statutes 
were passed in excess of the powers conferred by the charter, 
the question was tested, in the first instance, in the colonial 
courts, or, if the matter was taken to England, by the Privy 
Council. After the severance from the mother country, that 
power to annul an unconstitutional law was simply assumed, 
without any express grant from the people, by the state courts. 
Paper constitutions, defining in a dogmatic form the circle of 
individual rights surrounding the citizen into which state power 
must not intrude, was a French invention; the right of the judi- 
cial power to strike down as void any such unlawful intrusion 
was an American invention, the first and only one to which our 
state system has so far given birth. As the invention in ques- 

» Taken from Bulletin no. 109 of the Thirteenth Census of the United 
States, 1910. 



458 



THE AMERICAN CONSTITUTION 



[Ch. 



A confedera- 
tion of the 
old type. 



Failure of first 

American 

experiment. 



Attributes 
of the new 
creation. 



tion has been lifted up from the state system into the federal 
system, its importance can hardly be overestimated. It may 
be said to be the corner-stone of the entire constitutional fabric. 
Sufficient emphasis has been given already to the fact that 
in their first effort American statesmen exhibited no fertility 
whatever in the making of federal constitutions. They simply 
copied the one type which had existed from the days of the 
Greek leagues, — a confederation with the entire federal power 
vested and confused in a one-chamber assembly, without an exe- 
cutive head, without a judiciary, and without the power to tax. 
Our first Federal Constitution vested all power in a one-cham- 
ber Congress, which could make treaties with foreign nations, 
without the power to force the states to observe them; it alone 
could decide controversies between the states, and yet it could 
not enforce the final decree; it could declare war, but it could 
raise neither men nor money save through the old and ineffect- 
ual system of requisitions upon the states as states. FederaL 
ism, which as a system of government already stood low enough 
in the estimation of mankind, was put in no better plight by 
the first American experiment. On the contrary, the com- 
pleteness of its failure served as a final demonstration that the 
old type of a federal government was no longer adapted to 
modern conditions. At that juncture a great genius appeared 
who was fortunately a political economist and a financier, be- 
cause the mighty problem to be solved involved primarily the 
invention of a federal system armed first with the power to tax; 
second, with the power to regulate commerce with foreign na- 
tions and between jealous and discordant states. The outcome 
was a unique creation which differed from all preceding federal 
systems in the following particulars: first, it possessed the 
power to tax, something never heard of before in the world's 
history; second, the federal head was divided into three depart- 
ments — legislative, executive, and judicial — operating directly 
upon individuals, something never heard of before in the world's 
history; third, the federal assembly was divided into two cham- 
bers instead of one, something never heard of before in the 
world's history; fourth, the federal judiciary was armed with 
the power to put the stamp of nullity upon a national law, 
something never heard of before in the world's history. By 
that "wholly novel theory," as Tocqueville has called it, fed- 



XIV.] THE OUTCOME OF OUR GROWTH 459 

eralism as a system of government has been revolutionized and Federal gov- 
placed upon an entirely new basis. Since its advent the an- vdutionLed 
cient type of a federal government as embodied in the Articles 
of Confederation has been abolished, not only in the United 
States but throughout the world. It may therefore be said that 
the outcome of our growth is a new type of state government 
in which the rights of the citizen are guarded by constitutional 
limitations enforceable by the judicial power against all other 
powers; second, a new type of federal government, operating 
directly upon the citizen and not upon the states as corporations, 
and organized upon the peculiar principles described above. 

The new type of federal government invented here in 1783 Federation 
is asserting a marked influence upon federalism as a system of Sf ^^*^^** 
government the world over. It is even reacting upon the Con- 
stitution of the mother country, which has heretofore abhorred 
the idea of federation in every form. There is now pending 
a serious proposal for the calling of a constitutional convention 
to deal with the whole subject of the federation of the British 
Empire, — one of the most majestic, and at the same time one 
of the most urgently necessary measures with which British 
statesmanship has ever been confronted. It is hard to conceive 
how that incoherent mass of widely scattered dominions can be 
held together much longer under modern conditions, without 
the aid of the one natural and possible expedient. It is stated 
in the public press that those members of the Government who 
are opposed to giving Ireland the degree of independence pos- 
sessed by Canada and Australia, are "willing to concede to her 
relations to the Imperial Government similar to those that bind 
Ohio to Washington or Ontario to the Dominion of Canada." 
The North American type of federal government has already Federal 

been reproduced, with more or less exactness, in the four federal "i"o°s of 

. r -R /r • 1 Latin America, 

unions of Latin America : the Umted States of Mexico ; the 

Argentine Nation ; the United States of Brazil ; and the United 
States of Venezuela. The superstructures of the four federal 
states in question approach very closely to the prototype after 
which they were modeled. Each embodies the "wholly novel 
theory" of a federal government, — strictly organized, and 
divided into three departments, executive, legislative, and judi- 
cial, — operating directly upon individuals and not upon states constitution 
as corporations. The constitution of Mexico, which will be of Mexico. 



460 I THE AMERICAN CONSTITUTION [Ch. 

taken as typical, provides that "the supreme power of the fed- 
eration is divided for its exercise into legislative, executive, and 
judicial. Two or more of these powers shall never be united in 
one person or corporation, nor shall the legislative power be 
vested in one individual." It is then provided that "the legis- 
lative power of the nation is vested in a general congress, which 
shall consist of a chamber of deputies and a senate." The 
exclusive powers of each house and their relations to each other 
as coordinate bodies are substantially the same as in the North 
American system. In Mexico the judicial power is vested in a 
Supreme Court, and in district and circuit courts, whose juris- 
diction extends, in a general way, to all matters of which our 
federal courts have jurisdiction, except that they have no juris- 
diction of causes arising under their constitution, and under 
laws affecting private interests only, such being vested in the 
state courts. Neither have the Mexican federal courts jurisdic- 
tion of cases on the ground of diverse citizenship. But the juris- 
diction over controversies between a state and the citizen of 
another state, denied by our Eleventh Amendment, still exists 
in that system. The jurisdiction of the Supreme Court is 
appellate, except in controversies between state and state, be- 
tween Union and state, as to questions of jurisdiction between 
the tribunals of states, between federal tribunals asserting con- 
flicting jurisdictions, and between state and federal tribunals.^ 
A glaring sole- It would be a grave error to assume that the unique federal 
stitutioifor creation as it emerged from the Federal Convention of 1787 
1787. was a complete creation, logically symmetrical in all its parts. 

The fact is that it rested on a glaring solecism that was never 
removed until the adoption of the Fourteenth Amendment. 
The new principle which became the basis of the more perfect 
union, and which imparted to it its distinctive character, was 
that the sum of federal power vested in the new Constitution 
should operate not upon states in their corporate capacity but 
directly upon individuals. If that principle had been carried 
at the time of its adoption to its logical conclusion, it would 
then have been settled that the individuals upon whom the 
new government was to act should be primarily its own citi- 

* See the paper read by Mr. W. H. Comparative Study of the Constitu- 
Burgess before the Texas Bar Asso- tions of the United States of Mexico 
ciation, July 13, 1905, entitled "A and the United States of America." 



XIV.] THE OUTCOME OF OUR GROWTH 461 

zens. No greater logical anomaly can be imagined than a fed- 
eral government acting directly upon individuals, and yet a 
government without citizens in its own right. The founders of A government 
the new Constitution did not attempt to do more than estab- ^^s°^^ "^^" 
lish an interstate citizenship to which they imparted, the qual- 
ities of uniformity and equality by denying to every state the 
right to discriminate in favor of its own citizens as against those 
of any other state. There was no attempt whatever, either in 
the Constitution of 1787 itself, or in any Act of Congress passed 
after its adoption, to establish or define citizenship of the United 
States, as such, as a distinct and independent thing from state 
citizenship. When Dred Scott brought his suit in a United Vital question 
States Circuit Court to establish the freedom of himself, his ^^ ^^^^ ^*^°" 

case. 

wife, and their two children, the vital question was whether a 
free negro of African descent, whose ancestors were imported 
into this country and sold as slaves, could be a citizen of the 
United States, under the Judiciary Act, and as a citizen sue in 
a Circuit Court of the United States. Mr. Justice Curtis, who 
dissented, said: "That the Constitution itself has defined citi- 
zenship of the United States by declaring what persons, born 
within the several states, shall or shall not be citizens of the 
United States, will not be pretended. It contains no such de- 
claration." ^ It was not so defined because it did not exist even 
in the imaginations of the men who made the Constitution of 
1787; it was an aftergrowth that emerged from the newborn 
spirit of nationality that Constitution created. After the con- 
ception of a national citizenship thus came into being, it was de- 
fined for the first time in that section of the Fourteenth Amend- New dtizen- 
ment which provides that "all persons born or naturalized b^po^eenth 
in the United States, and subject to the jurisdiction thereof. Amendment. 
are citizens of the United States and of the state wherein they 
reside. No state shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the United 
States, nor shall any state deprive any person of life, liberty, 
or property, without due process of law ; nor deny to any per- 
son within its jurisdiction the equal protection of the laws." 
In describing the Act of Settlement, Hallam has said that it 
is "the seal of our constitutional laws, the complement of the 
Revolution itself, and the Bill of Rights." ^ So it may be said 
^ 19 How. 575. * Const. Hist., iii, 196. 



462 



THE AMERICAN CONSTITUTION 



[Ch. 



Transition 
from individ- 
ualism to col- 
lectivism. 



Dread of 
state power 
nurtured 
by French 
Revolution. 



Its effect upon 
JefiersoQ. 



"Narrowing 
circle of indi- 
vidual rights." 



that the section in question, which created the new national 
citizenship and then guarded it by a new Magna Carta, is the 
constitutional capstone of our nationality finally put in place 
by the hand of civil war. It is really a new creation, and as 
such the most important product of our national growth since 
the adoption of the Constitution itself. 

It is difficult to define briefly the outcome of the silent yet 
\ profound transition that has taken place in our national life 
ifrom a state of things in which the citizen was surrounded by a 
jwide circle of individual rights, free from the intrusion of gov- 
jernmental power, either state or federal, to a state of things in 
/ which that circle has been seriously narrowed by the constant 
i invasion of such power, both state and federal, at the invita- 
tion of the citizen himself. The fact is that the greater part of 
I those who founded this Republic were driven from the mother 
;' country and from other countries by the cruel exercise of state 
power, and the dread of that power thus begotten was after- 
■ wards nurtured by the teachings of the French Revolution, 
which was primarily an explosion caused by the extreme and 
all-pervading enforcement of state power. It is not therefore 
; strange that in drafting the original state constitutions the 
i founders should have taken every possible precaution to man- 
acle the monster representing state power with every restraint 
that such instruments could impose. When the time came for 
the advent of the existing Federal Constitution, an effort was 
made to attain the same end through the creation of a govern- 
ment of strictly delegated powers. Just after the foundations 
were thus laid, Jefferson returned from France (i 789) , engrossed 
by the opening scenes of the French Revolution and ready to 
preach the gospel of non-interference by governmental power, 
state or federal, within that wide circle of individual right, so 
clearly defined in the "Declaration of the Rights of Man." 
Such were the conditions under which Jefferson became the 
apostle of state sovereignty and decentralization. With that 
background clearly in view, it is hard not to be startled by the 
contrast when we look upon existing conditions in which "the 
narrowing circle of individual rights" is the product of an 
appeal made by the citizen himself to governmental power, state 
and federal, for protection against the incorporated masses 
marshaled against him. In the preceding chapter an effort has 



XIVJ THE OUTCOME OF OUR GROWTH 463 

been made to demonstrate that that changed attitude of the 
citizen to governmental power was the inevitable result of the 
growth of collectivism, the outcome "of the great industrial- The industrial 
ism, which, after a long period of preparation and gradual '^^°'"*'°°- 
growth, began to reach its culminating point with the inven- 
tions and technical improvements, with the application of 
steam and the rise of the factory system, in England toward 
the end of the eighteenth century. Under this system indus- 
try was organized into a vast social operation, and was thus 
already socialized ; but it was a system that was exploited by 
the individual owner of the capital at his own pleasure and for 
his own behoof. Under the pressure of the competition of 
the large industry, the small capitalist is gradually crushed out 
and the working producers become wage-laborers organized and 
drilled in immense factories and workshops. The development 
of this system still continues, and is enveloping the whole 
world. Such is the industrial revolution." ^ Charles Lamb 
once said that the whole Atlantic Coast presented itself to his 
mind as one long counter spread with wares. As we have been 
from the outset a commercial and industrial people, it is not 
strange that we should have felt the full force of this world- 
wide industrial revolution which has been strong enough here 
to change the attitude of the citizen to the state itself. 

The problems that engrossed the statesmen of this country Transition 
from the adoption of the Constitution in 1789 down to the frompoUtical 
Civil War were distinctly political. The nature of the Constitu- problems. 
tion itself, the organization of governmental machinery, the 
reorganization of parties for the control of that machinery, the 
rights of nullification and secession, the constitutional right to 
perpetuate and extend slavery, were all questions distinctly 
political. Out of the transition from individualism to coUect- 

* See Kirkup's article on "Social- ture of textile fabrics. That of Saint- 
ism" in Enc. Brit. 9th ed. xxii, 207. Simon was the result of the revolu- 
"The first forms of socialism in the tion in the world of thought that oc- 
nineteenth century were the off- curred mainly in France through the 
spring of two great revolutions that influence of Montesquieu, Voltaire, 
occurred in the eighteenth. That of Rousseau, and the Encyclopedists." 
Robert Owen came from the indus- John W. Perrin on "The German 
trial revolution in England that Social Democracy," in the North 
followed the inventions of Watt, American Review, October, 1910, 
Crompton, Hargreaves, and Ark- 464. 
Wright, revolutionizing the manufac- 



464 



THE AMERICAN CONSTITUTION 



[Ch. 



Struggle of the 
masses against 
monopoly. 



"The Colossus 
of business." 



Old dread of 
governmental 
power dis- 
carded. 



ivism, from slavery to freedom, from an epoch of political 
development to one of material development, have arisen 
since the Civil War a set of new problems distinctly economic. 
Chief among them are those involved in the struggle of the 
masses against the power of combined money and of private 
monopoly now exercised by groups of men incorporated in 
joint-stock companies, or by small knots of very rich men act- 
ing in trust combinations. As an acute observer has recently 
expressed it: "Corporations have come to cover greater areas 
than states ; have come to live under a greater variety of laws 
than the citizen himself; have excelled states in their budgets, 
and loomed bigger than whole commonwealths in their influ- 
ence over the lives and fortunes of entire communities of men. 
Centralized business has built up vast structures of organiza- 
tion and equipment which overtop all states, and seem to have 
no match or competition except the Federal Government itself, 
which was not intended for such competitions. Amid a con- 
fused variety of states and statutes stands now the Colossus 
of business, uniform, concentrated, poised upon a single plan, 
governed not by votes but by commands, seeking not service 
but profits. . . . Many modern corporations wield revenues 
and command resources which no ancient state possessed, and 
which some modern bodies politic show no approach to in their 
budgets. The economic power of society itself is concentrated 
in them for the conduct of this, that, or the other sort of busi- 
ness. The functions of business are differentiated and divided 
amongst them, but the power of each function is massed. . . . 
Society, in short, has discovered a new way of massing its 
resources and its power of enterprise, is building up bodies 
economic outside its bodies politic, which may, if we do not 
find the means to prevent them, the means of disclosing the 
responsibilities of the men who compose them, dominate bodies 
poHtic themselves."^ 

In order to deal effectively with such conditions, under 
which the control of daily subsistence and the means of trans- 
portation and communication of the nation has passed to the 
financiers, the American people has resolved to discard 
its old dread of governmental power. In the place of that 

* Woodrow Wilson's address before ^the American Bar Association, 
August 31, 1910. 



XIV.] THE OUTCOME OF OUR GROWTH 465 

dread it has substituted the conviction that as all govern- 
ments, state and federal, are the creatures of the people, it 
should not fear to use them as its instruments. After more 
than a century of profound distrust of itself the disenthralled 
American democracy is at last becoming conscious of its 
sovereign powers. By the spread of the direct primary system 
it is ascertaining its own will, in order that it may be applied 
by direct legislation, state and federal, to every problem to be 
solved. In an address delivered at Edinburgh, in 1883, Mr. Words of 
Goschen said: "How is it that while the increasing democracy Goschen. 
at home is insisting, with such growing eagerness, on more 
control by the state, we see so small a corresponding develop- 
ment of the same principle in the United States or in Anglo- 
Saxon colonies? It is clearly not simply the democratic spirit 
which demands so much central regulation. Otherwise we 
should find the same conditions in the Anglo-Saxon demo- 
cracies across the seas." If that statesman should now cast 
his eyes upon the vastest of all Anglo-Saxon democracies, 
he would find it fully aroused, and more eager perhaps than 
that of Britain to extend state interference in every possible 
direction. The Secretary of Commerce and Labor has very 
recently declared in a public address that ' ' there is reason to be- Abnormal de- 
lieve that by degrees the demands upon the Government have Government 
outgrown legitimate bounds. We certainly look to the Govern- 
ment for the accomplishment of things that have heretofore 
been regarded as foreign to it." With a keen appetite for legis- 
lation, in an age specially prolific of legislation, the American 
democracy is applying the full force of the legislative power, 
state and federal, to the supervision and control of corporate 
organization in every form it can possibly assume. That pro- 
cess is going on under the conviction that such organization, 
an indispensable convenience in the transaction of business, is 
not to be aboHshed. The purpose is to subordinate it to the 
pubhc pohcy of the state, and to subject the actual managers 
who wield the power of thousands to strict legal responsibility. 
The legal fiction that corporations can do no wrong will no 
longer be permitted to shelter the governing bodies that direct 
and use them for illegitimate and selfish purposes, to the injury 
of society and the serious impairment of private rights. The ment of rights 
ultimate end to be atteuned is the reestablishment of the rights of individual. 



466 



THE AMERICAN CONSTITUTION 



[Ch. 



Demand for 
creative states- 
manship. 



Unification of 
American law. 



of the individual so far as that may be accomplished under the 
new conditions which the great economic and industrial re- 
volution has brought about. That such a revolution has taken 
place it would be folly to deny, — "the transition we are wit- 
nessing is no equable transition of growth and normal altera- 
tion, no silent, unconscious unfolding of one age into another, 
its natural heir and successor." The American democracy, 
following in the footsteps of the English democracy, is now in 
the act of reconstructing political society in such a way as to 
make it conform to the profound changes that have already 
taken place in economic society. As law is simply a living and 
growing organism, which changes as the relations of society 
change, the new schemes of legislation now being enacted are 
simply the outward manifestations of the changes that have 
taken place within. In the making of such changes the two 
English-speaking democracies are animated with a boldness, 
an originality, a contempt for the past, never manifested before. 
We are in the midst of a transition that demands creative 
statesmanship. The old plan of "broadening down from pre- 
cedent to precedent" has yielded to a manifest purpose to re- 
examine the entire economic and political fabric, with the 
definite object of inaugurating comprehensive changes through 
the enactment of well-digested schemes of positive law. 

Out of the economic revolution which is still in progress there 
has arisen an insistent outcry for the unification of American 
law. Serious as the obstacles in the path of such an under- 
taking really are, they are scarcely more serious than those 
that impeded a like effort made in France out of which finally 
emerged the Code Napoleon. It had been estimated that in 
the France of the tenth century there were three hundred and 
sixty different kinds or groups of customary laws. Only with 
the history of such precedent conditions clearly in view can 
we grasp the real nature of the marvelous work of codification, 
made possible at last by that abrupt and profound break with 
the past known as the French Revolution. The effort to work 
a reform through the creation of a uniform code, which origin- 
ated in the Constituent Assembly with the dreamers of the 
Rousseau school, never began in earnest until 1800, when 
Napoleon, as First Consul, appointed Tronchet as the head of 
aiGommission which completed the draft in four months. The 



XIV.] THE OUTCOME OF OUR GROWTH 467 

entire work, finished in about four years, was published in 1804.^ Code Napo- 
Thus out of a prolonged and critical process finally emerged pig^e^"^" 
the most famous modern code of substantive law, consisting of four years. 
twenty-two hundred and eighty-one sections, arranged under 
titles and divided into three books, preceded by a preliminary 
title. It was the final product of the fusion of the customary 
laws, — wholly excluding all feudal laws and customs, — of royal 
ordinances and laws of the Revolution, and of the vital prin- 
ciples of Roman private law, stated with the greatest possible 
clearness and brevity. 

On January i, 1900, just a century after Tronchet and his New German 
colleagues began to draft the Code Napoleon, was officially code of 1900. 
promulgated a new general code for the whole German Em- 
pire. We should be able to look with confidence for an out- 
line of that code to the world-famous jurist, Dr. Rudolph Sohm, 
who was the leading member of the commission that made it.^ 
From him we learn that as the farmer and the merchant are 
and have been the two great powers in German history, the 
industrial and agrarian laws that survive may be compared 
to the jw^ civile, while the laws of the Civil Code may be said to 
resemble the Roman jus gentium. The merchant has not in- 
aptly been called "the father of the Civil Code of Germany," influence of 
because, as commercial intercourse recognizes no national 
boundaries, he was naturally the first to desire a homogeneous 
system of civil rights. It was the mercantile element in the 
German cities that eventually crushed the spirit of feudalism ; 
it was the mercantile element that opened the way for an Im- 
perial Code by first creating a uniform system of commercial 
law. The first modern effort to give unity to law in Germany 
was made, as a prelude to the movement for national unity, by 
the German Bills of Exchange Law (Wechselordnung, 1848- 
50), while a general Commercial Code (Gemeines Handelsgesetz- 

^ In 1904, the bench and bar of societe d' etudes legislatives. A. Rous- 
France celebrated the centennial seau, Paris, 1904, And also the ex- 
anniversary of its adoption with cellent article suggested by the event 
ceremonies whose literary fruits entitled "The Code Napoleon," in 
have been gathered in two ponder- American Law Review, Nov. and 
ous volumes, made up of papers Dec, 1906, by N. M. Rose, 
prepared by representatives of the ^ See his article on the general 
many countries that have adopted theory and purpose of the code in 
it. See Le Code Civile, 1804-IQ04; the Forum, October, 1899. 
Livre du centennaire. Publie par la 



commerce in 
unifying law. 



468 



THE AMERICAN CONSTITUTION 



[Ch. 



Our effort to 
establish uni- 
form commer- 
cial system. 



A merchant 
the father of 
the Constitu- 
tion. 



buck), enacted in the various states between 1862 and 1866, 
was reenacted for the new empire in 1871.^ 

In juxtaposition with the foregoing statement as to the in- 
fluence of commerce upon the unity of law in Germany should 
be set the fact that the first step toward the making of the ex- 
isting Constitution of the United States was taken in January, 
1786, when Virginia issued the call for a convention of states 
to meet at Annapolis, in order to consider the establishment of 
a uniform commercial system. When Maryland prompted Vir- 
ginia to take that step by proposing that commissioners from 
all the states should be invited to meet and regulate the re- 
strictions on commerce for the whole, Madison saw at once the 
advantage of "a politico-commercial commission" for the con- 
tinent.^ The outcome of the meeting at Annapolis was the call 
for a convention "to meet at Philadelphia on the second Mon- 
day of the next May to consider the situation of the United 
States." All the world now knows that three years and a half 
prior to the meeting of the Annapolis Convention, Pelatiah 
Webster, a retired merchant of Philadelphia, who was the great- 
est political economist of that day in this country, put forth, 
on February 16, 1783, as his invention, the entirely new plan 
of federal government embodied in the existing Constitution 
of the United States. Just as it may be said that the merchant 
was "the father of the Civil Code of Germany," so it may be 
said that a merchant was "the father of the Constitution of 
the United States." In the plan of the great architect large 
space is given to the influence of the merchant. " I therefore 
humbly propose," he said, "if the merchants in the several 
states are disposed to send delegates from their body, to meet 
and attend the sitting of Congress, that they shall be permitted 
to form a chamber of commerce, and their advice to Congress 
be demanded and admitted concerning all bills before Con- 
gress, as far as the same may affect the trade of the states. ... It 
will give dignity, uniformity, and safety to our trade." While 
Pelatiah Webster's dream of a uniform system of federal taxa- 
tion, enforceable by a self-sustaining system of federal govern- 
ment, has been fully realized, his dream of a uniform commercial 
system, resting on the "uniformity" of law, has been thwarted 

* See above,rp. 25. 

* Cf. Bancroft, Hist, of the Const., i, 252. 



XIV.] THE OUTCOME OF OUR GROWTH 469 

by the existence of independent sovereignties which stand to 
each other, so far as their domestic codes are concerned, almost 
like foreign nations. Out of that condition of things has arisen 
a ' ' conflict of laws ' ' whose embarrassments are endless. Against " Conflict 
those embarrassments the commercial elements of this coun- °^ ^'^^•" 
try are now struggling as never before, because, as the com- 
mercial relations of the states become more intimate and more 
complex, the disadvantages incident to the conflict deepen in 
intensity. Why such embarrassments are not actually greater 
than they are it is hard to understand when we consider the 
number of law-making bodies and the number of supreme tri- 
bunals in active operation. No country in the world has ever 
been inundated by such floods of law, statutory and judge- 
made, as are now streaming from the forty-six state sovereign- Forty-seven 
ties and the one federal sovereignty by which we are governed. ^^^^^ J^^ 
In comparison the books containing the statutory and judge- 
made law of England are a mere handful. The late Judge 
W. W. Howe^ called attention not long ago to the fact that, 
comparing the size of the pages, the forty-sixth volume of 
Louisiana Annual Reports for the year 1894 contains as 
much matter as the entire Digest or Pandect, into which 
was condensed the judge-made law evolved at Rome during 
a thousand years. 

As the states must abide so long as the Union abides, the inconven- 
nation must learn as it grows older to draw all possible benefits ^°^^ra°iT*^ 
from the two systems of law, while minimizing the inconven- intercommun- 
iences and conflicts necessarily arising out of the existence of i^ation. 
two systems. Such inconveniences and conflicts have greatly 
multiplied recently as rapid intercommunication has drawn 
the states nearer together than ever before, and as the start- 
ling growth of governmental power, state and federal, has in- 
truded itself, as never before, into the private life of the citizen, 
following as it does the apothecary to his laboratory, the dairy- 
man to his churn, the butcher to his shambles, and the baker 
to his oven. The widening circle of governmental power has 
intensified the difficulties affecting both commerce and labor 
first, by reason of conflicting state codes; second, by reason of 
the lack of uniformity between state and federal laws touching 
the same subject-matter. The result has been an outcry from 
* Studies in the Civil Law, 67. 



470 



THE AMERICAN CONSTITUTION 



[Ch. 



Four great 
agencies at 
work. 

American Bar 
Association 
and its yoke- 
fellow. 



Results 
already 
attained. 



National Civic 
Federation. 



many interests, which, during the last twenty years, has set in 
motion four great agencies now working together with perfect 
harmony and efficiency in the effort to unify American law. 
First among those agencies stands the American Bar Associa- 
tion, which for years has been doing its utmost to bring about 
unity in state legislation upon subjects of common interest, 
through its standing committee upon "Uniform State Laws." 
In order to render that branch of its work more effective, an 
affiliated association was created in 1890 by an Act of the New 
York Legislature authorizing the appointment of ' ' Commission- 
ers for the promotion of uniformity of legislation in the United 
States." These affiliated associations, yoked together by their 
by-laws, have accomplished great things already. Nineteen 
national conferences of commissioners from different states and 
territories have been held, there being now forty-eight states 
and territories, including the District of Columbia and the 
Philippine Islands, represented in the Conference. The Uni- 
form Negotiable Instruments Act (approved by the Conference 
in 1896) has been adopted in thirty-eight states and territories. 
The Uniform Warehouse Receipts Act (approved by the Confer- 
ence in 1906) has been adopted in eighteen states. The Uni- 
form Sales Act (approved by the Conference in 1906) has been 
adopted in six states. The Uniform Stock Transfer Act (ap- 
proved by the Conference in 1909) is now being presented to 
the several state legislatures. The Uniform Bills of Lading Act 
was adopted at the Conference in 1909, after the most careful 
criticism by the large interests affected. The Conference still 
has under consideration the draft of a Uniform Partnership 
Act, and also the draft of a Uniform Incorporation Act. All of 
these acts have been prepared in response to the pressing need 
of the business world to remove as far as possible the uncer- 
tainty and vexation arising from the widely differing laws of 
the states and territories on matters of daily importance. 

While the work of unifying state legislation was thus ad- 
vancing under the direction of the American Bar Association 
and its worthy yoke-fellow, a new force appeared in the corpor- 
ate person of the National Civic Federation, which recently 
held a conference at Washington, "after consultation with 
other bodies interested in promoting uniform legislation by 
the states of the Union." The horizon has been widened by the 



XIV.] THE OUTCOME OP OUR GROWTH 471 

work of the Federation, whose programme has swept into the 
struggle for unity in state laws such subjects as public account- 
ing, anti-trust and railway regulation, state banking, life and 
fire insurance, fire marshal laws, pure food laws, labor laws, 
commercial laws, vital statistics, marriage and divorce, laws 
relating to women and the custody of their children, and laws 
regulating the public health, and good roads. 

That irresistible trend toward unity in state laws, which is 
widening and deepening every day under the impulse of com- 
mercial necessity, has somewhat suddenly brought into being 
still another agency destined to be more potent, perhaps, than 
all others in working out the final result. The creation of 
the annual conference of the chief executives of all the states, 
known already as "The House of Governors," was little less "The House 
than an inspiration. This fourth institution is destined to °^ Governors." 
act as a hyphen or buckle to unite the masses struggling for 
the unification of American law with the state legislatures 
through whose agency it must be brought about, if at all. 
Each annual conference will put each governor abreast of the 
movement; after each meeting he will be ready to explain to 
the legislature of his state how much has been accomplished 
and how much remains to be done with its cooperation. 

Thus it appears that the machinery is all complete, and the Need for a " 
public mind thoroughly aroused by the pressure of a necessity typical code 
that grows more urgent every day. All that is lacking is a more 
comprehensive and scientific understanding of the end to be 
finally attained. The time has arrived when the American 
people must awake to the fact that the movement now dealing 
with the unification of state law piecemeal must undertake the 
construction of a comprehensive and typical code of state law, 
embracing all the subjects of legislation common to all, which 
each state may enact as its own with as little change as possible. 
It is manifest that without a common standard or ideal to which 
all may approach, the unification of American state law is im- 
possible. Nothing could be more fortunate than the gradual 
and almost unconscious approach which has so far been made 
toward such an ideal. The fact that thirty-eight states and ter- 
ritories have been able to adopt a Uniform Negotiable Instru- 
ments Act, the fact that eighteen states and territories have 
been able to adopt a Uniform Warehouse Receipts Act, puts the 



472 



THE AMERICAN CONSTITUTION 



[Ch. 



How it should 
be constructed. 



How it may 
be adopted. 



Need of a 
Federal Code 
Commission. 



fact beyond question that all may be induced gradually to 
adopt a scientifically constructed state code embracing every 
other subject in which they have a common interest. Under 
the auspices of the four great agencies now at work should be 
constructed such a code of state law, substantive and adjective, 
condensing within a reasonably narrow compass the fruits of 
our entire legal development. Such fruits should be so formu- 
lated as to embrace all the leading subjects in which the states 
have a common interest. The experience we have had already 
in the making of state codes should greatly facilitate the work, 
which should be one rather of selection than creation. "The 
House of Governors" can easily arrange an equitable scheme 
by which all the states may contribute, upon the basis of popu- 
lation, to the expense of maintaining an interstate code com- 
mission to consist of jurists of the highest order. As the Code 
Napoleon was completed from the first draft to the finish in 
four years, certainly that time should suffice for an undertak- 
ing that is nothing more than an enlargement of the work in 
which the "Commissioners for the promotion of uniformity 
of legislation in the United States" are now engaged. There 
is no reason why an interstate code commission should not be 
developed, in whole or in part, out of the ranks of that worthy 
and successful organization. After a typical code of state law 
has been perfected by such a code commission, the state legis- 
latures can be induced to adopt it under the pressure of public 
opinion by the normal process through which state codes are 
now adopted or revised at stated intervals. We all know how 
willing the younger states are to reproduce, in whole or in part, 
the codes of a few of the older states. If a common standard 
could once be set up, that inclination would become universal. 
Before an Interstate Code Commission can be organized, 
Congress should begin to wipe out the confusion now existing 
in our federal statutes, little less than a national disgrace, by 
the creation of a Federal Code Commission, to be charged with 
the duty of making a really scientific code of federal law, sub- 
stantive and adjective. The proposal recently made by the 
President for a commission to prepare a code of adjective law 
or procedure is too narrow; the work of such a commission 
should embrace also the substantive law, which is in sore need 
of careful revision. The two entirely independent commis- 



XIV.l THE OUTCOME OF OUR GROWTH 473 

sions should promote the common object by working side by 
side at Washington. In that way they would be able to devise 
harmonious regulations as to subjects upon which both state 
and nation must legislate, defining more clearly at the same 
time where state power should end and where federal power 
should begin. One half of the conflicts that now arise are caused 
by the absence of such legislation. Above all, two such bodies, 
working independently and yet in concert, should be able to Need of 
formulate a simple system of legal procedure, embracing the temof i^d^ 
enforcement of both legal and equitable rights, for the com- procedure. 
mon use of all tribunals, state and federal. That part of the 
work alone would save millions annually to the nation in the 
expenses and delays of Utigation. Rich as we are, we cannot 
aflFord to prolong existing systems, reeking with unnecessary 
and oppressive expenditures, apart from the constant miscar- 
riages of justice. 

This far-reaching question has been thus presented in con- 
clusion, because it is an outcome of our growth which de- 
mands for its solution the highest skill of the jurist and legis- 
lator. That solution can no longer be put off, — the insistence 
of its advocates is backed by the outcry of pressing commer- 
cial necessity. Certainly nothing could do more to strengthen National life 
our new national life than the unification of American law g^g^^ened 
through voluntary state action. Nothing could do more to through uni- 
defend us against the dangers of sectionalism, referred to by ^'^*^°° °^ ^*'- 
Washington in his Farewell Address as attending "geograph- 
ical discriminations, — Northern and Southern, Atlantic and 
Western, — whence designing men may endeavor to excite a 
belief that there is a real difference of local interests and views. 
One of the expedients of party to acquire influence within 
particular districts is to misrepresent the opinions and aims of 
other districts. You cannot shield yourselves too much against 
the jealousies and heartburnings which spring from these 
misrepresentations; they tend to render alien to each other 
those who ought to be bound together by fraternal affection." 



APPENDIX 

SELECT DOCUMENTS ILLUSTRATIVE OF 
AMERICAN CONSTITUTIONAL HISTORY 



APPENDIX 



I 

ARTICLES OF CONFEDERATION OF THE UNITED 
COLONIES OF NEW ENGLAND, 1643 ^ 

Betweene the plantations vnder the Gouernment of the Massachusetts, Appendix 
the Plantacons vnder the Gouernment of New Plymouth, the I 

Plantacons vnder the Gouernment of Connectacutt, and the 
Gouernment of New Haven with the Plantacons in combinacon 
therewith 

Whereas wee all came into these parts of America with one and the 
same end and ayme, namely, to advaunce the kingdome of our Lord 
Jesus Christ, and to enjoy the liberties of the Gospell in puritie with 
peace. And whereas in our settleinge (by a wise Providence of God) we 
are further dispersed vpon the Sea Coasts and Riuers then was at first 
intended, so that we cannot according to our desire, with convenience 
communicate in one Gouernment and Jurisdiccon. And whereas we 
live encompassed with people of seuerall Nations and Strang languages 
which heareafter may proue injurious to vs or our posteritie. And for- 
asmuch as the Natives have formerly committed sondry insolences and 
outrages vpon seueral Plantacons of the English and have of late com- 
bined themselues against vs. And seing by reason of those sad Dis- 
traccons in England, which they have heard of, and by which they know 
we are hindred from that humble way of seekinge advise or reapeing 
those comfortable fruits of protection which at other tymes we might 
well expecte. Wee therefore doe conceiue it our bounden Dutye without 
delay to enter into a present consotiation amongst our selues for mutual 
help and strength in all our future concernements : That as in Nation 
and Religion, so in other Respects we bee and continue one according 
to the tenor and true meaninge of the ensuing Articles: Wherefore it is 
fully agreed and concluded by and betweene the parties or Jurisdiccons 
aboue named, and they joyntly and seuerally doe by these presents 
agreed and concluded that they all bee, and henceforth bee called by 
the Name of the United Colonies of New-England. 

II. The said United Colonies, for themselues and their posterities, do 
joyntly and seuerally, hereby enter into a firme and perpetuall league 
of friendship and amytie, for offence and defence, mutuall advise and 

* A title taken directly from the Seven United Provinces of the Nether- 
lands. 



478 APPENDIX 

Appendix succour, vpon all just occatlons, both for preserueing and propagateing 
I the truth and liberties of the Gospel, and for their owne mutuall safety 

and wellfare. 

III. It is futher agreed That the Plantacons which at present are or 
hereafter shalbe settled within the limmetts of the Massachusetts, 
shalbe forever vnder the Massachusetts, and shall have peculiar Juris- 
diccon among themselues in all cases as an entire Body, and that Ply- 
mouth, Connecktacutt, and New Haven shall eich of them haue like 
peculier Jurisdiccon and Gouernment within their limmetts and in 
referrence to the Plantacons which already are settled or shall hereafter 
be erected or shall settle within their limmetts respectiuely ; prouided 
that no other Jurisdiccon shall hereafter be taken in as a distinct head 
or member of this Confederacon, nor shall any other Plantacon or Juris- 
diccon in present being and not already in combynacon or vnder the 
Jurisdiccon of any of these Confederats be received by any of them, nor 
shall any two of the Confederats joyne in one Jurisdiccon without con- 
sent of the rest, which consent to be interpreted as is expressed in the 
sixth Article ensuinge. 

IV. It is by these Confederats agreed that the charge of all just warrs, 
whether offensiue or defensiue, upon what part or member of this Con- 
federaccon soever they fall, shall both in men and provisions, and all 
other Disbursements, be borne by all the parts of this Confederacon, in 
different proporcons according to their different abilitie, in manner fol- 
lowing, namely, that the Commissioners for eich Jurisdiccon from tyme 
to tyme, as there shalbe occation, bring a true account and number of 
all the males in every Plantacon, or any way belonging to, or under their 
seuerall Jurisdiccons, of what quality or condicion soeuer they bee, from 
sixteene yeares old to threescore, being Inhabitants there. And That 
according to the different numbers which from tyme to tyme shalbe 
found in eich Jurisdiccon, upon a true and just account, the service of 
men and all charges of the warr be borne by the Poll : Eich Jurisdiccon, 
or Plantacon, being left to their owne just course and custome of rating 
themselues and people according to their different estates, with due 
respects to their qualites and exemptions among themselues, though the 
Confederacon take no notice of any such priviledg: And that according 
to their differrent charge of eich Jurisdiccon and Plantacon, the whole 
advantage of the warr (if it please God to bless their Endeavours) 
whether it be in lands, goods or persons, shall be proportionably deuided 
among the said Confederats. 

V. It is further agreed That if any of these Jurisdiccons, or any Plan- 
tacons vnder it, or in any combynacon with them be envaded by any 
enemie whomsoeuer, vpon notice and request of any three majestrats of 
that Jurisdiccon so invaded, the rest of the Confederates, without any 
further meeting or expostulacon, shall forthwith send ayde to the Con- 
federate in danger, but in different proporcons; namely, the Massachu- 
setts an hundred men sufficiently armed and provided for such a ser- 
vice and jorney, and eich of the rest fourty-fiue so armed and provided, 
or any lesse number, if lesse be required, according to this proporcon. 



APPENDIX 479 

But If such Confederate In danger may be supplyed by their next Con- Appendix 
federate, not exceeding the number hereby agreed, they may craue help I 

there, and seeke no further for the present. The charge to be borne as in 
this Article is exprest: And, at the returne, to be victualled and sup- 
plyed with poder and shott for their journey (if there be neede) by that 
Jurisdiccon which employed or sent for them: But none of the Jurisdic- 
cons to exceed these numbers till by a meeting of the Commissioners for 
this Confederacon a greater ayd appeare necessary. And this proporcon 
to continue, till upon knowledge of greater numbers in eich Jurisdiccon 
which shalbe brought to the next meeting some other proporcon be 
ordered. But in any such case of sending men for present ayd whether 
before or after such order or alteracon, it is agreed that at the meeting 
of the Commissioners for this Confederacon, the cause of such warr or 
invasion be duly considered: And if It appeare that the fault lay in the 
parties so invaded, that then that Jurisdiccon or Plantacon make just 
Satisfaccon, both to the Invaders whom they have injured, and beare 
all the charges of the warr themselves without requireing any allowance 
from the rest of the Confederats towards the same. And further, that 
if any Jurisdiccon see any danger of any Invasion approaching, and 
there be tyme for a meeting, that in such case three majestrats of that 
Jurisdiccon may summon a meeting at such convenyent place as them- 
selues shall think meete, to consider and provide against the threatned 
danger. Provided when they are met they may remoue to what place 
they please, Onely whilst any of these foure Confederats have but three 
majestrats in their Jurisdiccon, their request or summons from any two 
of them shalbe accounted of equall force with the three mentoned in 
both the clauses of this Article, till there be an increase of majestrats 
there. 

VI. It Is also agreed that for the mannaging and concluding of all 
affairs proper and concerneing the whole Confederacon, two Commis- 
sioners shalbe chosen by and out of eich of these foure Jurisdiccons, 
namely, two for the Massachusetts, two for Plymouth, two for Connec- 
tacutt and two for New Haven ; being all in Church fellowship with us, 
which shall bring full power from their seuerall generall Courts respec- 
tively to heare, examine, weigh and determine all affaires of our warr 
or peace, leagues, ayds, charges and numbers of men for warr, divission 
of spoyles and whatsoever is gotten by conquest, receiueing of more 
Confederats for plantacons into combinacon with any of the Confed- 
erates, and all thinges of like nature which are the proper concomitants 
or consequence of such a confederacon, for amytie, offence and defence, 
not intermeddleing with the gouernment of any of the Jurisdiccons 
which by the third Article is preserued entirely to themselves. But If 
these eight Commissioners, when they meete, shall not all agree, yet It is 
concluded that any six of the eight agreeing shall have power to settle 
and determine the business in question: But If six do not agree, that then 
such proposicons with their reasons, so farr as they have beene debated, 
be sent and referred to the foure generall Courts, vizt. the Massachu- 
setts, Plymouth, Connectacutt, and New Haven: And If at all the said 



48o APPENDIX 

Appendix Generall Courts the businesse so referred be concluded, then to bee 
I prosecuted by the Confederates and all their members. It is further 

agreed that these eight Commissioners shall meete once every yeare, 
besides extraordinary meetings (according to the fift Article) to con- 
sider, treate and conclude of all affaires belonging to this Confederacon, 
which meeting shall ever be the first Thursday in September. And that 
the next meeting after the date of these presents, which shalbe ac- 
counted the second meeting, shalbe at Bostone in the Massachusetts, 
the third at Hartford, the fourth at New Haven, the fift at Plymouth, 
the sixt and seaventh at Bostone. And then Hartford, New Haven and 
Plymouth, and so in course successiuely, if in the meane tyme some 
middle place be not found out and agreed on which may be commodious 
for all the jurisdiccons. 

VH. It is further agreed that at eich meeting of these eight Commis- 
sioners, whether ordinary or extraordinary, they, or six of them agree- 
ing, as before, may choose their President out of themselues, whose 
office and worke shalbe to take care and direct for order and a comely 
carrying on of all proceedings in the present meeting. But he shalbe 
invested with no such power or respect as by which he shall hinder the 
propounding or progresse of any businesse, or any way cast the Scales, 
otherwise then in the precedent Article is agreed. 

VIII. It is also agreed that the Commissioners for this Confederacon 
hereafter at their meetings, whether ordinary or extraordinary, as they 
may have commission or opertunitie, do endeavoure to frame and 
establish agreements and orders in generall cases of a civill nature 
wherein all the plantacons are interested for preserving peace among 
themselves, and preventing as much as may bee all occations of warr or 
difference with others, as about the free and speedy passage of Justice 
in every Jurisdiccon, to all the Confederats equally as their owne, 
receiving those that remoue from one plantacon to another without due 
certefycats; how all the Jurisdiccons may carry it towards the Indians, 
that they neither grow insolent nor be injured without due satisfaccion, 
lest warr break in vpon the Confederates through such miscarryage. It 
is also agreed that if any servant runn away from his master into any 
other of these confederated Jurisdiccons, That in such Case, vpon the 
Certyficate of one Majistrate in the Jurisdiccon out of which the said 
servant fled, or upon other due proofe, the said servant shalbe deliuered 
either to his Master or any other that pursues and brings such Certifi- 
cate or proofe. And that vpon the escape of any prisoner whatsoever or 
fugitiue for any criminal cause, whether breaking prison or getting from 
the officer or otherwise escaping, upon the certificate of two Majistrats 
of the Jurisdiccon out of which the escape is made that he was a prisoner 
or such an offender at the tyme of the escape. The Majestrates or some 
of them of that Jurisdiccon where for the present the said prisoner or 
fugitive abideth shall forthwith graunt such a warrant as the case will 
beare for the apprehending of any such person, and the delivery of him 
into the hands of the officer or other person that pursues him. And if 
there be help required for the safe returneing of any such offender, then 



APPENDIX 481 

it shalbe graunted to him that craves the same, he paying the charges Appendix 
thereof. I 

IX. And for that the justest warrs may be of dangerous consequence, 
espetially to the smaler plantacons in these vnited Colonies, It is agreed 
that neither the Massachusetts, Plymouth, Connectacutt nor New- 
Haven, nor any of the members of any of them shall at any tyme here- 
after begin, undertake, or engage themselues or this Confederacon, or 
any part thereof in any warr whatsoever (sudden exegents with the 
necessary consequents thereof excepted, which are also to be moderated 
as much as the case will permit) without the consent and agreement of 
the forenamed eight Commissioners, or at least six of them, as in the 
sixt Article is provided : And that no charge be required of any of the 
Confederats in case of a defensiue warr till the said Commissioners haue 
mett and approued the justice of the warr, and have agreed vpon the 
sum of money to be levyed, which sum is then to be payd by the sev- 
erall Confederates in proporcon according to the fourth Article. 

X. That in extraordinary occations when meetings are summoned 
by three Majistrats of any Jurisdiccon, or two as in the fift Article, If 
any of the Commissioners come not, due warneing being given or sent, 
It is agreed that foure of the Commissioners shall have power to direct 
a warr which cannot be delayed and to send for due proporcons of men 
out of eich Jurisdiccon, as well as six might doe if all mett; but not less 
than six shall determine the justice of the warr or allow the demaunde 
of bills of charges or cause any levies to be made for the same. 

XI. It is further agreed that if any of the Confederates shall here- 
after break any of these present Articles, or be any other wayes injurious 
to any one of thother Jurisdiccons, such breach of Agreement, or injurie, 
shalbe duly considered and ordered by the Commissioners for thother 
Jurisdiccons, that both peace and this present Confederacon may be 
entirely preserued without violation. 

XII. Lastly, this perpetuall Confederacon and the several Articles 
and Agreements thereof being read and seriously considered, both by 
the Generall Court for the Massachusetts, and by the Commissioners 
for Plymouth, Connectacutt and New Haven, were fully allowed and 
confirmed by three of the forenamed Confederates, namely, the Massa- 
chusetts, Connectacutt and New-Haven, Onely the Commissioners for 
Plymouth, having no Commission to conclude, desired respite till they 
might advise with their Generall Court, wherevpon it was agreed and 
concluded by the said court of the Massachusetts, and the Commission- 
ers for the other two Confederates, That if Plymouth Consent, then the 
whole treaty as it stands in these present articles is and shall continue 
firme and stable without alteracon: But if Plymouth come not in, yet 
the other three Confederates doe by these presents confirme the whole 
Confederacon and all the Articles thereof, onely, in September next, 
when the second meeting of the Commissioners is to be at Bostone, new 
consideracon may be taken of the sixt Article, which concernes number 
of Commissioners for meeting and concluding the affaires of this Con- 
federacon to the satisfaccon of the court of the Massachusetts, and 



482 APPENDIX 

Appendix the Commissioners for thother two Confederates, but the rest to stand 
I vnquestioned. 

In testymony whereof, the Generall Court of the Massachusetts by 
their Secretary, and the Commissioners for Connectacutt and New- 
Haven haue subscribed these presente articles, this xixth of the third 
month, commonly called May, Anno Domini, 1643. 

At a Meeting of the Commissioners for the Confederacon, held at 
Boston, the Seaventh of September. It appeareing that the Generall 
Court of New Plymouth, and the severall Towneships thereof have 
read, considered and approoued these articles of Confederacon, as 
appeareth by Comission from their Generall Court beareing Date the 
xxixth of August, 1643, to Mr, Edward Winslowe and Mr. Will Collyer, 
to ratifye and confirme the same on their behalf, wee therefore, the 
Comissioners for the Mattachusetts, Conecktacutt and New Haven, 
doe also for our seuerall Gouernments, subscribe vnto them. 

John Winthrop, Governor of Massachusetts, 
Tho. Dudley, 

Theoph. Eaton, 

Geo. Fenwick, 

Edwa. Hopkins, 

Thomas Gregson. 



II 

PENN'S PLAN OF UNION — 1697 

MR. PENN'S plan for A UNION OF THE COLONIES IN AMERICA 

A Briefe and Plaine Scheam how the English Colonies in the North Appendix 
parts of America, viz. : Boston, Connecticut, Road Island, New York, II 

New Jerseys, Pensilvania, Maryland, Virginia, and Carolina may be 
made more useful! to the Crowne, and one another's peace and safty 
with an universal! concurrence. 

1st. That the severall Colonies before mentioned do meet once a year, 
and oftener if need be, during the war, and at least once in two years in 
times of peace, by their stated and appointed Deputies, to debate and 
resolve of such measures as are most adviseable for their better under- 
standing, and the public tranquility and safety. 

2d. That in order to it two persons well qualified for sence, sobriety 
and substance be appointed by each Province, as their Representatives 
or Deputies, which in the whole make the Congress to consist of twenty 
persons. 

3d. That the King's Commissioner for that purpose specially ap- 
pointed shall have the chaire and preside in the said Congresse. 

4th. That they shall meet as near as conveniently may be to the most 
central! Colony for use of the Deputies. 

5th. Since that may in all probability, be New York both because it 
is near the Center of the Colonies and for that it is a Frontier and in the 
King's nomination, the Govr. of that Colony may therefore also be the 
King's High Commissioner during the Session after the manner of 
Scotland. 

6th. That their business shall be to hear and adjust all matters of 
Complaint or difference between Province and Province. As, 1st, where 
persons quit their own Province and goe to another, that they may avoid 
their just debts, tho they be able to pay them, 2nd, where offenders fly 
Justice, or Justice cannot well be had upon such offenders in the Pro- 
vinces that entertaine them, 3dly, to prevent or cure injuries in point of 
Commerce, 4th, to consider of ways and means to support the union and 
safety of these Provinces against the publick enemies. In which Con- 
gresse the Quotas of men and charges will be much easier, and more 
equally sett, then it is possible for any establishment made here to do; 
for the Provinces, knowing their own condition and one another's, can 
debate that matter with more freedome and satisfaction and better 
adjust and ballance their affairs in all respects for their common safty. 

7ly. That in times of war the King's High Commissioner shall be 
general! or chief Commander of the severall Quotas upon service against 
a common enemy as he shall be advised, for the good and benefit of the 
whole. 



Ill 

COXE AND FRANKLIN'S PLAN OF UNION — 1754 

Appendix Plan of a proposed Union of the several Colonies of Massachusetts 

III Bay, New Hampshire, Connecticut, Rhode Island, New York, New 

Jersey, Pennsylvania, Maryland, Virginia, North Carolina, and South 

Carolina for their mutual Defence and Security, and for the extending 

the British Settlements in North America. 

That humble application be made for an act of Parliament of Great 
Britain, by virtue of which one general government may be formed in 
America, including all the said Colonies, within and under which gov- 
ernment each Colony may retain its present constitution, except in the 
particulars wherein a change may be directed by the said act, as here- 
after follows. 

PRESIDENT-GENERAL AND GRAND COUNCIL 

That the said general government be administered by a President- 
General, to be appointed and supported by the Crown; and a Grand 
Council to be chosen by the representatives of the people of the several 
Colonies met in their respective assemblies. 

It was thought that it would be best the President-General should be 
supported as well as appointed by the Crown, that so all disputes between 
him and the Grand Council concerning his salary might be prevented; as 
such disputes have been frequently of mischievous consequence in particular 
Colonies, especially in time of public danger. The quit-rents of crown lands 
in America might in a short time be sufficient for this purpose. The choice 
of members for the Grand Council is placed in the House of Representatives 
of each government, in order to give the people a share in this new general 
government, as the Crown has its share by the appointment of the President- 
General. 

But it being proposed by the gentlemen of the Council of New York, and 
some other counsellors among the commissioners, to alter the plan in this 
particular, and to give the governors and councils of the several Provinces 
a share in the choice of the Grand Council, or at least a power of approving 
and confirming, or of disallowing, the choice made by the House of Repre- 
sentatives, it was said, — "That the government or constitution, proposed 
to be formed by the plan, consists of two branches: a President-General 
appointed by the Crown, and a Council chosen by the people, or by the 
people's representatives, which is the same thing. 

"That, by a subsequent article, the council chosen by the people can 
effect nothing without the consent of the President-General appointed by 
the Crown; the Crown possesses, therefore, full one half of the power of this 
constitution. 

"That in the British Constitution, the Crown is supposed to possess but 
one third, the Lords having their share. 

"That the constitution seemed rather more favorable for the Crown. 

"That it is essential to English liberty that the subject should not be 
taxed but by his own consent, or the consent of his elected representatives. 



^APPENDIX 485 

"That taxes to be laid and levied by this proposed constitution will be Appendix 
proposed and agreed to by the representatives of the people, if the plan in III 

this particular be preserved. 

" But if the proposed alteration should take place, it seemed as if matters 
may be so managed, as that the Crown shall finally have the appointment, 
not only of the President-General, but of a majority of the Grand Council; 
for seven out of eleven governors and councils are appointed by the Crown. 

"And so the people in all the Colonies would in effect be taxed by their 
governors. 

" It was therefore apprehended, that such alterations of the plan would 
give great dissatisfaction, and that the Colonies could not be easy under 
such a power in governors, and such an infringement of what they take to be 
English liberty. 

" Besides, the giving a share in the choice of the Grand Council would not 
be equal with respect to all the Colonies, as their constitutions differ. In 
some, both governor and council are appointed by the Crown. In others, 
they are both appointed by the proprietors. In some, the people have a 
share in the choice of the council; in others, both government and council 
are wholly chosen by the people. But the House of Representatives is 
everywhere chosen by the people; and, therefore, placing the right of choos- 
ing the Grand Council in the representatives is equal with respect to all. 

"That the Grand Council is intended to represent all the several Houses 
of Representatives of the Colonies, as a House of Representatives doth the 
several towns or counties of a Colony. Could all the people of a Colony be 
consulted and unite in public measures, a House of Representatives would 
be needless, and could all the Assemblies consult and unite in general meas- 
ures, the Grand Council would be unnecessary. 

"That a House of Commons or the House of Representatives, and the 
Grand Council are alike in their nature and intention. And, as it would seem 
improper that the King or House of Lords should have a power of disallow- 
ing or appointing Members of the House of Commons; so, likewise, that a 
governor and council appointed by the Crown should have a power of dis- 
allowing or appointing members of the Grand Council, who, in this consti- 
tution, are to be the representatives of the people. 

" If the governor and councils therefore were to have a share in the choice 
of any that are to conduct this general government, it should seem more 
proper that they should choose the President-General. But this being an 
office of great trust and importance to the nation, it was thought better to 
be filled by the immediate appointment of the Crown. 

"The power proposed to be given by the plan to the Grand Council is only 
a concentration of the powers of the several assemblies in certain points for 
the general welfare; as the power of the President-General is of the several 
governors in the same point. 

"And as the choice therefore of the Grand Council, by the representatives 
of the people, neither gives the people any new powers, nor diminishes the 
power of the Crown, it was thought and hoped the Crown would not dis- 
approve of it." 

Upon the whole, the commissioners were of opinion, that the choice was 
most properly placed in the representatives of the people. 

ELECTION OF MEMBERS 
That within months after the passing such act, the House of 



486 APPENDIX 

Appendix Representatives that happens to be sitting within that time, or that 
III shall be especially for that purpose convened, may and shall choose 

members for the Grand Council, in the following proportion, that is to 

say,— 

Massachusetts Bay 7 

New Hampshire 2 

Connecticut 5 

Rhode Island 2 

New York 4 

New Jersey 3 

Pennsylvania 6 

Maryland 4 

Virginia ; 7 

North Carolina 4 

South Carolina 4 

48 

It was thought, that if the least Colony was allowed two, and the others 
in proportion, the number would be very great, and the expense heavy; and 
that less than two would not be convenient, as, a single person being by any 
accident prevented appearing at the meeting, the Colony he ought appear 
for would not be represented. That, as the choice was not immediately 
popular, they would be generally men of good abilities for business, and men 
of reputation for integrity, and that forty-eight such men might be a num- 
ber sufficient. But, though it was thought reasonable that each Colony 
should have a share in the representative body in some degree according to 
the proportion it contributed to the general treasury, yet the proportion of 
wealth or power of the Colonies is not to be judged by the proportion here 
fixed: because it was at first agreed, that the greatest Colony should not 
have more than seven members, nor the least less than two; and the setting 
these proportions between these two extremes was not nicely attended to, 
as it would find itself, after the first election, from the sum brought into the 
treasury by a subsequent article. 

PLACE OF FIRST MEETING 

— Who shall meet for the first time at the city of Philadelphia in 
Pennsylvania, being called by the President-General as soon as con- 
veniently may be after his appointment. 

Philadelphia was named as being nearer the centre of the Colonies, where 
the commissioners would be well and cheaply accommodated. The high 
roads, through the whole extent, are for the most part very good, in which 
forty or fifty miles a day may very well be, and frequently are, travelled. 
Great part of the way may likewise be gone by water. In summer time, the 
passages are frequently performed in a week from Charleston to Philadel- 
phia and New York, and from Rhode Island to New York through the 
Sound, in two or three days, and from New York to Philadelphia, by water 
and land, in two days, by stage boats, and street carriages that set out every 
other day. The journey from Charleston to Philadelphia may likewise be 
facilitated by boats running up Chesapeake Bay three hundred miles. But 
if the whole journey be performed on horseback, the most distant members, 
viz., the two from New Hampshire and from South Carolina, may probably 



APPENDIX 487 

render themselves at Philadelphia in fifteen or twenty days; the majority Appendix 
may be there in much less time. HI 

NEW ELECTION 

That there shall be a new election of the members of the Grand Coun- 
cil every three years; and, on the death or resignation of any member, 
his place should be supplied by a new choice at the next sitting of the 
Assembly of the Colony he represented. 

Some Colonies have annual assemblies, some continue during a governor's 
pleasure; three years was thought a reasonable medium as affording a new 
member time to improve himself in the business, and to act after such im- 
provement, and yet giving opportunities, frequently enough, to change him 
if he has misbehaved. 

PROPORTION OF MEMBERS AFTER THE FIRST THREE YEARS 

That after the first three j'^ears, when the proportion of money arising 
out of each Colony to the general treasury can be known, the number of 
members to be chosen for each Colony shall, from time to time, in all 
ensuing elections, be regulated by that proportion, yet so as that the 
number to be chosen by any one Province be not more than seven, nor 
less than two. 

By a subsequent article, it is proposed that the General Council shall lay 
and levy such general duties as to them may appear most equal and least 
burdensome, etc. Suppose, for instance, they lay a small duty or excise on 
some commodity imported into or made in the Colonies, and pretty gener- 
ally and equally used in all of them, as rum, perhaps, or wine; the yearly 
produce of this duty or excise, if fairly collected, would be in some Colonies 
greater, in others less, as the Colonies are greater or smaller. When the 
collector's accounts are brought in, the proportions will appear; and from 
them it is proposed to regulate the proportion of the representatives to be 
chosen at the next general election, within the limits, however, of seven and 
two. These numbers may therefore vary in the course of years, as the Col- 
onies may in the growth and increase of people. And thus the quota of tax 
from each Colony would naturally vary with its circumstances, thereby 
preventing all disputes and dissatisfaction about the just proportions due 
from each, which might otherwise produce pernicious consequences, and 
destroy the harmony and good agreement that ought to subsist between the 
several parts of the Union. 

MEETINGS OF THE GRAND COUNCIL AND CALL 

That the Grand Council shall meet once in every year, and oftener 
if occasion require, at such time and place as they shall adjourn to at 
the last preceding meeting, or as they shall be called to meet at by the 
President-General on any emergency ; he having first obtained in writing 
the consent of seven of the members to such call, and sent due and timely 
notice to the whole. 

It was thought, in establishing and governing new Colonies or settle- 



488 APPENDIX 

Appendix ments, or regulating Indian trade, Indian treaties, etc., there would, every 
III year, sufficient business arise to require at least one meeting, and at such 

meeting many things might be suggested for the benefit of all the Colonies. 
This annual meeting may either be at a time and place certain, to be fixed 
by the President-General and Grand Council at their first meeting; or left 
at liberty, to be at such time and place as they shall adjourn to, or be called 
to meet at, by the President-General. 

In time of war, it seems convenient that the meeting should be in that 
colony which is nearest the seat of action. 

The power of calling them on any emergency seemed necessary to be 
vested in the President-General; but, that such power might not be wantonly 
used to harass the members, and oblige them to make frequent long journeys 
to little purpose, the consent of seven at least to such call was supposed 
a convenient guard. 

CONTINUANCE 

That the Grand Council have power to choose their speaker ; and shall 
neither be dissolved, prorogued, nor continued sitting longer than six 
weeks at one time, without their own consent or the special command of 
the Crown. 

The speaker should be presented for approbation; it being convenient, to 
prevent misunderstandings and disgusts, that the mouth of the Council 
should be a person agreeable, if possible, to the Council and President- 
General. 

Governors have sometimes wantonly exercised the power of proroguing 
or continuing the sessions of assemblies, merely to harass the members and 
compel a compliance; and sometimes dissolve them on slight disgusts. This 
it was feared might be done by the President-General, if not provided 
against; and the inconvenience and hardship would be greater in the general 
government than in particular Colonies, in proportion to the distance the 
members must be from home during sittings, and the long journeys some of 
them must necessarily take. ' 

members' allowance 

That the members of the Grand Council shall be allowed for their 
service ten shillings per diem, during their session and journey to and 
from the place of meeting; twenty miles to be reckoned a day's journey. 

It was thought proper to allow some wages, lest the expense might deter 
some suitable persons from the service; and not to allow too great wages, 
lest unsuitable persons should be tempted to cabal for the employment, for 
the sake of gain. Twenty miles were set down as a day's journey, to allow 
for accidental hindrances on the road, and the greater expenses of travelling 
than residing at the place of meeting. 

ASSENT OF PRESIDENT-GENERAL AND HIS DUTY 

That the assent of the President-General be requisite to all acts of 
the Grand Council, and that it be his office and duty to cause them to be 
carried into execution. 



APPENDIX " 489 

The assent of the President-General to all acts of the Grand Council was Appendix 
made necessary in order to give the Crown its due share of influence in this III 

government, and connect it with that of Great Britain. The President- 
General, besides one half of the legislative power, hath in his hands the 
whole executive power. 

POWER OF PRESIDENT-GENERAL AND GRAND COUNCIL 
TREATIES OF PEACE AND WAR 

That the President-General, with the advice of the Grand Council, 
hold or direct all Indian treaties, in which the general interest of the 
Colonies may be concerned, and make peace or declare war with Indian 
nations. 

The power of making peace or war with Indian nations is at present sup- 
posed to be in every Colony, and is expressly granted to some by charter, 
so that no new power is hereby intended to be granted to the Colonies. But 
as, in consequence of this power, one Colony might make peace with a nation 
that another was justly engaged in war with ; or make war on slight occasion 
without the concurrence or approbation of neighboring Colonies, greatly 
endangered by it; or make particular treaties of neutrality in case of a gen- 
eral war, to their own private advantage in trade, by supplying the com- 
mon enemy, of all which there have been instances, it was thought better to 
have all treaties of a general nature under a general direction, that so the 
good of the whole may be consulted and provided for. 

INDIAN TRADE 

That they make such laws as they judge necessary for regulating all 
Indian trade. 

Many quarrels and wars have arisen between the colonies and Indian 
nations, through the bad conduct of traders, who cheat the Indians after 
making them drunk, etc., to the great expense of the colonies, both in blood 
and treasure. Particular colonies are so interested in the trade, as not to be 
willing to admit such a regulation as might be best for the whole; and there- 
fore it was thought best under a general direction. 

INDIAN PURCHASES 

That they make all purchases from Indians, for the Crown, of lands not 
now within the bounds of particular colonies, or that shall not be within 
their bounds when some of them are reduced to more convenient dimen- 
sions. 

Purchases from the Indians, made by private persons, have been attended 
with many inconveniences. They have frequently interfered and occa- 
sioned uncertainty of titles, many disputes and expensive lawsuits, and 
hindered the settlement of the land so disputed. Then the Indians have been 
cheated by such private purchases, and discontent and wars have been the 
consequence. These would be prevented by public fair purchases. 

Several of the Colony charters in America extend their bounds to the 
South Sea, which may perhaps be three or four thousand miles in length 
to one or two hundred miles in breadth. It is supposed they must in time be 



490 APPENDIX 

Appendix reduced to dimensions more convenient for the common purposes of govern- 
IH ment. 

Very little of the land in these grants is yet purchased of the Indians. 
It is much cheaper to purchase of them, than to take and maintain the 
possession by force; for they are generally very reasonable in their demands 
for land; and the expense of guarding a large frontier against their incursions 
is vastly great; because all must be guarded, and always guarded, as we 
know not where or when to expect them. 

NEW SETTLEMENTS 

That they make new settlements on such purchases by granting lands 
in the King's name, reserving a quit-rent to the Crown for the use of the 
general treasury. 

It is supposed better that there should be one purchaser than many; and 
that the Crown should be that purchaser, or the Union in the name of the 
Crown. By this means the bargains may be more easily made, the price not 
enhanced by numerous bidders, future disputes about private Indian pur- 
chases, and monopolies of vast tracts to particular persons (which are pre- 
judicial to the settlement and peopling of the country), prevented; and, the 
land being again granted in small tracts to the settlers, the quit-rents 
reserved may in time become a fund for support of government, for de- 
fence of the country, case of taxes, etc. 

Strong forts on the Lakes, the Ohio, etc., may, at the same time they 
secure our present frontiers, serve to defend new colonies settled under their 
protection; and such colonies would also mutually defend and support such 
forts, and better secure the friendship of the far Indians. 

A particular colony has scarce strength enough to exert itself by new 
settlements, at so great a distance from the old; but the joint force of the 
Union might suddenly establish a new colony or two in those parts, or 
extend an old colony to particular passes, greatly to the security of our pre- 
sent frontiers, increase of trade and people, breaking off the French commun- 
ication between Canada and Louisiana, and speedy settlement of the inter- 
mediate lands. 

The power of settling new colonies is therefore thought a valuable part 
of the plan, and what cannot so well be executed by two unions as by one. 

LAWS TO GOVERN THEM 

That they make laws for regulating and governing such new settle- 
ments, till the Crown shall think fit to form them into particular govern- 
ments. 

The making of laws suitable for the new colonies, it was thought, would 
be properly vested in the President-General and Grand Council; under whose 
protection they must at first necessarily be, and who would be well ac- 
quainted with their circumstances, as having settled them. When they are 
become sufficiently populous, they may by the Crown be formed into com- 
plete and distinct governments. 

The appointment of a sub-president by the Crown, to take place in case of 
the death or absence of the President-General, would perhaps be an improve- 
ment of the plan; and if all the governors of particular provinces were to be 



APPENDIX 491 

formed into a standing council of state, for the advice and assistance of the Appendix 
President-General, it might be another considerable improvement. HI 

RAISE SOLDIERS, AND EQUIP VESSELS, ETC. 

That they raise and pay soldiers and build forts for the defence of any 
of the colonies, and equip vessels of force to guard the coasts and protect 
the trade on the ocean, lakes, or great rivers ; but they shall not Impress 
men in any colony, without the consent of the legislature. 

It was thought, that quotas of men, to be raised and paid by the several 
colonies, and joined for any public service, could not always be got together 
with the necessary expedition. For instance, suppose one thousand men 
should be wanted in New Hampshire on any emergency. To fetch them by 
fifties and hundreds out of every colony, as far as South Carolina, would 
be inconvenient, the transportation chargeable, and the occasion perhaps 
passed before they could be assembled; and therefore it would be best to 
raise them (by offering bounty money and pay) near the place where they 
would be wanted, to be discharged again when the service should be over. 

Particular colonies are at present backward to build forts at their own 
expense, which they say will be equally useful to their neighboring colonies, 
who refuse to join, on a presumption that such forts will be built and kept 
up, though they contribute nothing. This unjust conduct weakens the 
whole; but, the forts being for the good of the whole, it was thought best they 
should be built and maintained by the whole, out of the common treasury. 

In the time of war, small vessels of force are sometimes necessary in the 
colonies to scour the coasts of small privateers. These being provided by 
the Union will be an advantage in turn to the colonies which are situated on 
the sea, and whose frontiers on the land-side, being covered by other colo- 
nies, reap but little immediate benefit from the advanced forts. 

POWER TO MAKE LAWS, LAY DUTIES, ETC. 

That for these purposes they have power to make laws and lay and '^ 
levy such general duties, imposts or taxes, as to them shall appear most 
equal and just (considering the ability and other circumstances of the 
inhabitants in the several colonies), and such as may be collected with 
the least inconvenience to the people ; rather discouraging luxury, than 
loading industry with unnecessary burdens. 

The laws which the President-General and Grand Council are empowered 
to make are such only as shall be necessary for the government of the settle- 
ments; the raising, regulating, and paying soldiers for the general service; 
the regulating of Indian trade; and laying and collecting the general duties 
and taxes. They should also have a power to restrain the exportation of 
provisions to the enemy from any of the colonies, on particular occasions, 
in time of war. But it is not intended that they may interfere with the con- 
stitution or government of the particular colonies, who are to be left to their 
own laws, and to lay, levy, and apply their own taxes as before. 

GENERAL TREASURER AND PARTICULAR TREASURER 

That they may appoint a General Treasurer, and Particular Treasurer 
in government when necessary; and, from time to time, may order the 



492 APPENDIX 

Appendix sums in the treasuries of each government into the general treasury, or 
III draw on them for special payments, as they find most convenient. 

The treasurers here meant are only for the general funds and not for the 
particular funds of each colony, which remain in the hands of their own 
treasurers at their own disposal. 

MONEY, HOW TO ISSUE 

Yet no money to issue but by joint orders of the President-General 
and Grand Council, except where sums have been appointed to partic- 
ular purposes, and the President-General is previously empowered by 
an act to draw such sums. 

To prevent misapplication of the money, or even application that might 
be dissatisfactory to the Crown or the people, it was thought necessary to 
join the President-General and Grand Council in all issues of money. 

ACCOUNTS 

That the general accounts shall be yearly settled and reported to the 
several Assemblies. 

By communicating the accounts yearly to each Assembly, they will be 
satisfied of the prudent and honest conduct of their representatives in the 
Grand Council. 

QUORUM 

That a quorum of the Grand Council, empowered to act with the 
President-General, do consist of twenty-five members; among whom 
there shall be one or more from a majority of the Colonies. 

The quorum seems large, but it was thought it would not be satisfactory 
to the colonies in general, to have matters of importance to the whole trans- 
acted by a smaller number, or even by this number of twenty-five, unless 
there were among them one at least from a majority of the colonies, because 
otherwise, the whole quorum being made up of members from three or four 
colonies at one end of the union, something might be done that would not be 
equal with respect to the rest, and thence dissatisfaction and discords might 
arise to the prejudice of the whole. 

LAWS TO BE TRANSMITTED 

That the laws made by them for the purposes aforesaid shall not be 
repugnant, but, as near as may be, agreeable to the laws of England, 
and shall be transmitted to the King in Council for approbation, as soon 
as may be after their passing; and if not disapproved within three years 
after presentation, to remain in force. 

This was thought necessary for the satisfaction of the Crown, to preserve 
the connection of the parts of the British Empire with the whole, of the 
members with the head, and to induce greater care and circumspection in 
making of the laws, that they be good in themselves and for the general 
benefit. 



APPENDIX 493 

DEATH OF THE PRESIDENT-GENERAL APPENDIX 

III 
That, in case of the death of the President-General, the Speaker of 
the Grand Council for the time being shall succeed, and be vested with 
the same powers and authorities, to continue till the King's pleasure 
be known. 

It might be better, perhaps, as was said before, if the Crown appointed a 
Vice-President, to take place on the death or absence of the President- 
General; for so we should be more sure of a suitable person at the head of the 
colonies. On the death or absence of both, the Speaker to take place (or 
rather the eldest King's Governor) till his Majesty's pleasure be known. _. 

OFFICERS, HOW APPOINTED 

That all military commission officers, whether for land or sea service, 
to act under this general constitution, shall be nominated by the 
President-General ; but the approbation of the Grand Council is to be 
obtained, before they receive their commissions. And all civil officers 
are to be nominated by the Grand Council, and to receive the President- 
General's approbation before they officiate. 

It was thought it might be very prejudicial to the service, to have officers 
appointed unknown to the people or unacceptable, the generality of Amer- 
icans serving willingly under officers they know; and not caring to engage 
in the service under strangers, or such as are often appointed by governors 
through favor or interest. The service here meant, is not the stated, settled 
service in standing troops; but any sudden and short service, either for 
defence of our colonies, or invading the enemy's country (such as the expedi- 
tion to Cape Breton in the last war; in which many substantial farmers and 
tradesmen engaged as common soldiers, under officers of their own country, 
for whom they had an esteem and affection; who would not have engaged in 
a standing army, or under officers from England). It was therefore thought 
best to give the Council the power of approving the officers, which the people 
will look on as a great security of their being good men. And without some 
such provision as this, it was thought the expense of engaging men in the 
service on any emergency would be much greater, and the number who 
could be induced to engage much less; and that therefore it would be most 
for the King's service and the general benefit of the nation, that the pre- 
rogative should relax a little in this particular throughout all the colonies in 
America; as it had already done much more in the charters of some particular 
colonies, viz.: Connecticut and Rhode Island. 

The civil officers will be chiefly treasurers and collectors of taxes; and the 
suitable persons are most likely to be known by the Council. 

VACANCIES, HOW SUPPLIED 

But, in case of vacancy by death or removal of any officer, civil or 
military, under this constitution, the Governor of the province in which 
such vacancy happens, may appoint, till the pleasure of the President- 
General and Grand Council can be known. 

The vacancies were thought best supplied by the governors in each pro- 



494 APPENDIX 

Appendix vince, till a new appointment can be regularly made; otherwise the service 
III might suffer before the meeting of the President- General and Grand Council. 

EACH COLONY MAY DEFEND ITSELF IN EMERGENCY, ETC. 

That the particular military as well as civil establishments in each 
colony remain in their present state, the general constitution notAvith- 
standing; and that on sudden emergencies any colony may defend itself, 
and lay the accounts of expense thence arising before the President- 
General and General Council, who may allow and order payment of the 
same, as far as they judge such accounts just and reasonable- 
Otherwise the union of the whole would weaken the parts, contrary to the 
design of the Union. The accounts are to be judged of by the President- 
General and Grand Council, andallowed if found reasonable. This was thought 
necessary to encourage colonies to defend themselves, as the expense would 
be light when borne by the whole; and also to check imprudent and lavish 
expense in such defences. 

In Carey's American Museum, 1789, February (pp. 190-194), March (pp. 
285-288), April (pp. 365-368), there is an elaborate article, "Albany Plan 
of Union," at the conclusion of which appears the following: — 

"remark FEBRUARY 9, 1789 

"On Reflection it now seems probable, that if the foregoing Plan or some- 
thing like it had been adopted and carried into Execution, the subsequent 
Separation of the Colonies from the Mother Country might not so soon have 
happened, nor the Mischiefs suffered on both sides have occurred perhaps 
during another Century. For the Colonies, if so united, would have really 
been, as they then thought themselves, sufficient to their own Defence, and 
being trusted with it, as by the Plan, an Army from Britain, for that purpose 
would have been unnecessary; the Pretences for framing the Stamp Act 
would then not have existed, nor the other projects for drawing a Revenue 
from America to Britain by Act of Parliament, which were the Causes of the 
Breach & attended with such terrible Expense of Blood and Treasure; so 
that the different parts of the Empire might still have remained in Peace and 
Union. But the Fate of this Plan was singular. For then after many Days 
thorough Discussion of all its Parts in Congress it was unanimously agreed 
to, and Copies ordered to be sent to the Assembly of each province for Con- 
currence, and one to the Ministry in England for the Approbation of the 
Crown. The Crown disapproved it, as having placed too much Weight in 
the Democratic Part of the Constitution; and every Assembly, as having 
allowed too much to Prerogative. So it was totally rejected." 

The above, as printed in The Museum, omits the word "Remark," but 
bears date at the bottom, Philadelphia, April 9, 1789. It was written by 
Dr. Franklin and accompanied the following letter: — 

"Sir, I thank you for the Opportunity you propose to give me of making 
Alterations in these old Pieces of mine which you intend to republish in your 
Museum. I have no Inclination to make any change in them; but should like 
to see Proof Sheet, supposing your Copies may possibly be incorrect, and if 
you have no Objection, you may follow the Albany Plan with the enclosed 
Remark but not as from me. 

" I am. Sir, Your humble Servant 

(Signed) " B. Franklin." * 

* See Smyth, The Life and Writings of Benjamin Franklin, iii, 226-227. 



IV 

DECLARATION OF RIGHTS AND LIBERTIES MADE 
BY STAMP ACT CONGRESS, OCTOBER 19, 1765 

The members of this Congress, sincerely devoted, with the warmest Appendix 
sentiments of affection and duty to his Majesty's person and govern- IV 

ment, inviolably attached to the present happy establishment of the 
Protestant succession,^and with minds deeply impressed by a sense of 
the present and impending misfortunes of the British Colonies on this 
continent; having considered as maturely as time will permit, the cir- 
cumstances of the said colonies, esteem it our indispensable duty to 
make the following declarations of our humble opinion, respecting the 
most essential rights and liberties of the colonists, and of the grievances 
^under which they labour, by reason of several late Acts of Parliament. 

I. That his Majesty's subjects in these colonies owe the same allegi- i^ 
ance to the Crown of Great Britain, that is owing from his subjects 
born within the realm, and all due subordination to that august body, 

the Parliament of Great Britain. 

II. That his Majesty's liege subjects in these colonies are intitled 
to all the inherent rights and liberties of his natural bom subjects, ^ 
within the kingdom of Great Britain. 

III. That it is inseparably essential to the freedom of a people, and 
the undoubted right of Englishmen, that no Taxes be imposed on them *^ 
but with their own consent, given personally, or by their representatives. 

IV. That the people of these colonies are not, and, from their local 
circumstances cannot be, represented in the House of Commons in 
Great Britain. 

V. That the only representatives of the people of these colonies are 
persons chosen therein by themselves, and that no taxes ever have 
been, or can be constitutionally imposed on them, but by their respect- 
ive legislatures. 

VI. That all supplies to the Crown being free gifts of the people, it 
is unreasonable and inconsistent with the principles and spirit of the 
British Constitution, for the people of Great Britain to grant to his 
Majesty the property of the colonists. 

VII. That trial by jury is the inherent and invaluable right of every 
British subject in these colonies. 

VIII. That — [the Stamp Act] ... by imposing taxes on the in- 
habitants of these colonies, and the said Act, and several other Acts, 
by extending the jurisdiction of the courts of admiralty beyond its 
ancient limits, have a manifest tendency to subvert the rights and 
liberties of the colonists. 

IX. That the duties imposed by several late Acts of Parliament, from 



496 APPENDIX 

Appendix the peculiar circumstances of these colonies, will be extremely burthen- 
IV some and grievous; and from the scarcity of specie, the payment of 

them absolutely unpracticable. 

X. That as the profits of the trade of these colonies ultimately centre 
in Great Britain, to pay for the manufactures which they are obliged 
to take from thence, they eventually contribute very largely to all 
supplies granted there to the Crown. 

XL That the restrictions imposed by several late Acts of Parliament 
on the trade of these colonies, will render them unable to purchase the 
manufactures of Great Britain. 

XII. That the increase, prosperity, and happiness of these colonies, 
depend on the full and free enjoyments of their rights and liberties, 
and an intercourse with Great Britain mutually affectionate and ad- 
vantageous. 

XIII. That it is the right of the British subjects in these colonies 
to petition the King, or either House of Parliament. 

Lastly, That it is the indispensable duty of these colonies, to the best 
of sovereigns, to the Mother Country, and to themselves, to endeavour 
by a loyal and dutiful address to his Majesty and humble applications 
to both Houses of Parliament, to procure the repeal of the Act for grant- 
ing and applying certain stamp duties, of all clauses of any other Acts 
of Parliament, Whereby the jurisdiction of the admiralty is ex- 
tended as aforesaid, and of the other late Acts for the restriction of 
American Commerce. 



V 
DECLARATORY ACT OF MARCH i8, 1766 

An Act for the better securing the dependency of his Majesty's dominions 
in America upon the Crown and Parliament of Great Britain 

Whereas several of the houses of representatives in his Majesty's Appendix 
colonies and plantations in America, have of late, against law, claimed V 

to themselves, or to the general assemblies of the same, the sole and ex- 
clusive right of imposing duties and taxes upon his Majesty's subjects 
in the said colonies and plantations ; and have, in pursuance of such claim, 
passed certain votes, resolutions, and orders, derogatory' to the legis- 
lative authority of Parliament, and inconsistent ■^'ith the dependency of 
the said colonies and plantations upon the Crown of Great Britain: . . . 
be it declared . . . That the said colonies and plantations in America 
have been, are, and of right ought to be, subordinate unto, and depend- 
ent upon the Imperial Crown and Parliament of Great Britain; and 
that the King's Majesty, by and with the ad\-ice and consent of the 
Lords Spiritual and Temporal and Commons of Great Britain, in Par- 
liament assembled, had, hath, and of right ought to have, full power 
and authority to make laws and statutes of sufl&cient force and validity 
to bind the colonies and people of America, subjects of the Crown of 
Great Britain, in all cases whatsoever. 

IL And be it further declared . . . That all resolutions, notes, 
orders, and proceedings, in any of the said colonies or plantations, 
whereby the power and authority of the Parliament of Great Britain, 
to make laws and statutes as aforesaid, is denied or drawn into ques- 
tion, are, and are hereby declared to be, utterly null and void to all 
intents and purposes whatsoever. 



VI 

DECLARATION OF RIGHTS AND LIBERTIES MADE 
BY THE FIRST CONTINENTAL CONGRESS, OCTO- 
BER 14, 1774 

Appendix Whereas, since the close of the last war, the British Parliament, 
^^ claiming a power of right to bind the people of America, by statute 

in all cases whatsoever, hath in some acts expressly imposed taxes on 
them, and in others, under various pretences, but in fact for the pur- 
pose of raising a revenue, hath imposed rates and duties payable in 
these colonies, established a board of commissioners with unconstitu- 
tional powers, and extended the jurisdiction of courts of admiralty, 
not only for collecting the said duties, but for the trial of causes merely 
arising within the body of a county. 

And Whereas, in consequence of other statutes, judges, who before 
held only estates at will in their offices, have been made dependant on 
the Crown alone for their salaries, and standing armies kept in times 
of peace: 

And it has lately been resolved in Parliament, that by force of a 
statute made in the thirty-fifth year of the reign of King Henry the 
Eighth, colonists may be transported to England, and tried there upon 
accusations for treasons, and misprisions, or concealments of treasons 
committed in the colonies; and by a late statute, such trials have been 
directed in cases therein mentioned. 

And Whereas, in the last session of Parliament, three statutes were 
made; "one, intituled" "An Act to discontinue in such manner and for 
such time as are therein mentioned, the landing and discharging, 
lading, or shipping of goods, wares & merchandise, at the town, and 
within the harbour of Boston, in the province of Massachusetts-bay, 
in North- America "; another, intituled "An Act for the better reg- 
ulating the government of the province of the Massachusetts-bay in 
New-England;" and another intituled "An Act for the impartial 
administration of justice, in the cases of persons questioned for any 
act done by them in the execution of the law, or for the suppression of 
riots and tumults, in the province of the Massachusetts-bay in New 
England." And another statute was then made "for making more 
effectual provision for the government of the province of Quebec, &c." 
All which statutes are impolitic, unjust, and cruel, as well as uncon- 
stitutional, and most dangerous and destructive of American rights. 

And Whereas, Assemblies have been frequently dissolved, contrary 
ito the rights of the people, when they attempted to deliberate on griev- 
ances, and their dutiful, humble, loyal, & reasonable petitions to the 



APPENDIX 499 

Crown for redress, have been repeatedly treated with contempt, by his Appendix 
Majesty's ministers of state: VI 

The good people of the several Colonies of New-Hampshire, Massa- 
chusetts-Bay — Rhode-Island and Providence plantations, Connecticut, 
New-York, New-Jersey, Pennsylvania, Newcastle, Kent and Sussex on 
Delaware, Maryland, Virginia, North Carolina, and South Carolina, 
justly alarmed at these arbitrary proceedings of Parliament and Admin- 
istration, have severally elected, constituted, and appointed deputies to 
meet and sit in general congress, in the city of Philadelphia, in order to 
obtain such establishment, as that their religion, laws, and liberties may 
not be subverted : 

Whereupon the deputies so appointed being now assembled, in a full 
and free representation of these Colonies, taking into their most seri- 
ous consideration, the best means of attaining the ends aforesaid, do, 
in the first place, as Englishmen, their ancestors, in like cases have 
usually done, for asserting, and vindicating their rights and liberties, 
declare. 

That the inhabitants of the English Colonies in North America by 
the immutable laws of nature, the principles of the English Constitu- 
tion, and the several charters or compacts, have the following Rights: 

Resolved, N. CD. i. That they are entitled to life, liberty, & pro- 
perty, and they have never ceded to any sovereign power whatever, a 
right to dispose of either without their consent. 

Resolved, N. C. D. 2. That our ancestors who first settled these 
colonies, were at the time of their emigration from the Mother Country, 
entitled to all the rights, liberties, and immunities of free and natural- 
born subjects, within the realms of England. 

Resolved, N. C. D. 3. That by such emigration they by no means 
forfeited, surrendered, or lost any of those rights, but that they were, 
and their descendants now are, entitled to the exercise and enjoyment 
of all such of them, as their local and other circumstances enable them 
:to exercise and enjoy. 

Resolved, 4. That the foundation of English liberty, and of all free 
government, is a right in the people to participate in their legislative 
Council : and as the English colonists are not represented, and from 
their local and other circumstances, cannot properly be represented in 
the British Parliament, they are entitled to a free and exclusive power of 
legislation in their several provincial legislatures, where their right 
of representation can alone be preserved, in all cases of taxation and 
internal polity, subject only to the negative of their sovereign, in such 
manner as has been heretofore used and accustomed. But, from 
the necessity of the case, and a regard to the mutual interest of both 
countries, we cheerfully consent to the operation of such Acts of the 
British Parliament, as are, bona fide, restrained to the regulation of 
our external commerce for the purpose of securing the commercial 
advantages of the whole empire to the M other country, and the commer- 
cial benefits of its respective members; excluding every idea of taxation, 
internal or external, for raising a revenue on the subjects in America, 
without their consent. 



500 APPENDIX 

Appendix Resolved, N. C. D. 5. That the respective colonies are entitled to the 
VI common law of England, and more especially to the great and inestim- 

able privilege of being tried by their peers of the vicinage, according 
to the course of that law. 

Resolved, 6. That they are entituled to the benefit of such of the 
English statutes as existed at the time of their colonization; and which 
they have, by experience, respectively found to be applicable to their 
several local and other circumstances. 

Resolved, N. C. D. 7. That these, his Majesty's colonies, are likewise 
entituled to all the immunities and privileges granted & confirmed to 
them by royal charters, or secured by their several codes of provincial 
laws. 

Resolved, N. C. D. S. That they have a right peaceably to assemble, 
consider of their grievances, and petition the King; and that all pro- 
secutions, prohibitory proclamations, and commitments for the same, 
are illegal. 

Resolved, N. C. D. 9. That the keeping a Standing Army in these 
colonies, in times of peace, without the consent of the legislature of 
that colony, in which such army is kept, is against law. 

Resolved, N. C. D. 10. It is indispensably necessary to good govern- 
ment, and rendered essential by the English Constitution, that the 
constituent branches of the legislature be independent of each other; 
that, therefore, the exercise of legislative power in several colonies, 
by a council appointed, during pleasure, by the Crown, is unconstitu- 
tional, dangerous, and destructive to the freedom of American legis- 
lation. 

All and each of which the aforesaid deputies, in behalf of themselves 
and their constituents, do claim, demand, and insist on, as their indub- 
itable rights and liberties; which cannot be legally taken from them, 
altered or abridged by any power whatever, without their own consent, 
by their representatives in their several provincial legislatures. 

In the course of our inquiry, we find many infringements and viola- 
tions of the foregoing rights, which, from an ardent desire that har- 
mony and mutual intercourse of affection and interest may be restored, 
we pass over for the present, and proceed to state such acts and meas- 
ures as have been adopted since the last war, which demonstrate a 
system formed to enslave America. 

Resolved, N. C. D., That the following Acts of Parliament are in- 
fringements and violations of the rights of the colonists, and that the 
repeal of them is essentially necessary in order to restore harmony be- 
tween Great-Britain and the American colonies, viz. : — 

The several Acts of 4 Geo. 3. ch. 15, & ch. 34. — 5 Geo. 3. ch. 25 — 
6 Geo. 3. ch. 52. — 7 Geo. 3. ch. 41, & ch. 46 — 8 Geo. 3. ch. 22, 
which impose duties for the purpose of raising a revenue in America, 
extend the powers of the admiralty courts beyond their ancient limits, 
deprive the American subject of trial by jury, authorize the judges' 
certificate to indemnify the prosecutor from damages, that he might 
otherwise be liable to, requiring oppressive security from a claimant of 



APPENDIX 501 

ships and goods seized, before he shall be allowed to defend his pro- Appendix 
perty, and are subversive of American rights. VI 

Also the 12 Geo. 3. ch. 24, entituled "An Act for the better securing 
his Majesty's dock-yards, magazines, ships, ammunition, and stores," 
which declares a new offence in America, and deprives the American 
subject of a constitutional trial by a jury of the vincinage, by author- 
izing the trial of any person, charged with the committing any offence 
described in the said Act, out of the realm, to be indicted and tried 
for the same in any shire or county within the realm. Also the three 
Acts passed in the last session of Parliament, for stopping the port 
and blocking up the harbour of Boston, for altering the charter & 
government of the Massachusetts-bay, and that which is entituled 
"An Act for the better administration of Justice," &c. 

Also the Act passed in the same session for establishing the Roman 
Catholick Religion in the province of Quebec; abolishing the equitable 
system of English laws, and erecting a tyranny there, to the great 
danger, from so total a dissimilarity of Religion, law, and government, 
of the neighbouring British colonies, by the assistance of whose blood 
and treasure the said country was conquered from France. 

Also the Act passed in the same session for the better providing 
suitable quarters for officers and soldiers in his Majesty's service in 
North-America. 

Also, that the keeping a standing army in several of these colonies, in 
time of peace, without the consent of the legislature of that colony 
in which such army is kept, is against law. 

To these grievous acts and measures, Americans cannot submit, 
but in hopes that their fellow subjects in Great-Britain will, on a re- 
vision of them, restore us to that state in which both countries found 
happiness and prosperity, we have for the present only resolved to 
pursue the following peacable measures: — 

1st. To enter into a non-importation, non-consumption, and non- 
exportation agreement or association. 

2. To prepare an address to the people of Great-Britain, and a 
Memorial to the inhabitants of British America, & 

3. To prepare a loyal address to his Majesty; agreeable to Resolu- 
tions already entered into. 



VII 

THE MECKLENBURG DECLARATION OF INDE- 
PENDENCE OF MAY 31, 1775 

THE MECKLENBURG RESOLVES AS THEY APPEARED IN THE 
NORTH CAROLINA GAZETTE OF JUNE 16/ 1775, NO. 323, 
PRINTED WEEKLY AT NEW BERN, NORTH CAROLINA 

Appendix Mr. William Henry Hoyt, in his work entitled "The Mecklenburg 
VII Declaration of Independence; a study of evidence showing that the 

alleged early Declaration of Independence by Mecklenburg County, 
North Carolina, on May 20, 1775, is spurious," tells us at p. 275 that 
"the North Carolina Gazette of June 16, 1775, from which the foregoing 
resolves are copied, was recently found by Mr. Edward P. Moses, of 
Raleigh, in the library of Hayes, the residence of Samuel Johnston, the 
Revolutionary statesman, near Edenton, North Carolina. Mr. Moses 
found with it a letter of Richard Cogdell, chairman of the Craven County 
Committee, dated New Bern, June 18, 1775. The newspaper was un- 
doubtedly enclosed in this letter, which bears internal evidence of 
having been addressed to Richard Caswell, at Philadelphia. Cogdell 
writes that "the Craven Committee has put into execution measures 
similar to those recommended by Caswell. 'We have Transmitted the 
Copy of Our proceedings, ' he says, ' to every County and Town in the 
Province, and have had the pleasure to hear many Counties have 
adopted the same. Our County of Craven have had their private 
musters and Elected their Officers. . . . You'l Observe the Mecklen- 
burg Resolves, exceeds all other Committees, or the Congress itself. 
I Send you the paper, wherein they are inserted as I hope this will^ 
come Soon to hand." V>W^\.0 Uc c^ir^V^^^J 

^ These same resolves, with a few "Charles-Town," South Carolina, 
differences in minor details, arising. They also appeared at Wilmington, 
no doubt, from imperfect printing, North Carolina, on June 23, 1775, 
had appeared on Tuesday, June 13, in the Cape Fear Mercury, sent in 
1775, in the South Carolina Gazette Governor Martin's duplicate let- 
and Country Journal of that date, ter of June 30, 1775, to Lord Dart- 
conducted by Charles Crouch, a mouth; and in part, in the Northern 
sound Whig and published in papers. 



APPENDIX 503 

THE MECKLENBURG RESOLVES AS PRINTED IN THE NORTH 
CAROLINA GAZETTE OF JUNE I6, I775, NO. 323 

Charlotte Town, 

Mecklenburg County, 

May 31. 

This Day the Committee met, and passed the following Resolves. Appendix 

Whereas, by an Address presented to his Majesty by both Houses VII 

of Parliament in February last, the American Colonies are declared 
to be in a State of actual Rebellion, we conceive that all Laws and Cora- 
missions confirmed by, or drived from, the Authority of the King, or 
Parliament, are annulled and vacated, and the former civil Constitu- 
tion of these Colonies for the present wholly suspended. To provide 
in some Degree for the Exigencies of the County in the present alarm- 
ing Period, we deem it proper and necessary to pass the following re- 
solves, viz. : — 

1. That all Commissions, civil and Military, heretofore granted by 
the Crown to be exercised in these Colonies, are null and void, and the 
Constitution of each particular Colony wholly suspended. 

2. That the Provincial Congress of each Province, under the Direc- 
tion of the Great Continental Congress, is invested with all legislative 
and executive Powers within their respective Provinces; and that 
no other Legislative or Executive does or can exist, at this Time, in 
any of these Colonies. 

3. As all former Laws are now suspended in this Province, and the 
Congress have not yet provided others, we judge it necessary, for the 
better Preservation of good Order, to form certain Rules and Regula- 
tions for the internal Government of this County, until Laws shall 
be provided for us by the Congress. 

4. That the Inhabitants of this County do meet on a certain Day 
appointed by this Committee and having formed themselves into 
nine Companies, to wit, eight for the County, and one for the town 
of Charlotte, do choose a Colonel, and other Military Officers, who 
shall hold and exercise their several Powers by Virtue of this Choice, 
and independent of Great-Britain, and former Constitution of this 
Province. 

5. That for the better preservation of the Peace and Administration 
of Justice, each of these Companies do choose, from their own Body, two 
discreet Freeholders, who shall be impowered each by himself, and 
singly, to decide and determine all Matters of Controversy arising 
within the said Company under the Sum of Twenty Shillings, and 
jointly and together all Controversies under the Sum of Forty Shil- 
lings, yet so as their Decisions may admit of Appeals to the Conven- 
tion of the Select Men, of the Whole County; and also, that any one 
of these shall have Power to examine, and commit to Confinement, 
Persons accused of Petit Larceny. 

6. That those two Select Men, thus chosen, do, jointly and together, 



504. APPENDIX 

Appendix choose from the Body of their particular Company two Persons, properly 
VII qualified to serve as Constables, who may assert them in the Execu- 

tion of their Office. 

7. That upon the Complaint of any Person to either of these Select 
Men, he do issue his Warrant, directed to the Constable, command- 
ing him to bring the Aggressor before him, or them, to answer the said 
Complaint. 

8. That these eighteen Select Men, thus appointed, do meet every 
third Tuesday in January, April, July, and October, at the Court- 
House in Charlotte, to hear and determine all Matters of Controversy 
for Sums exceeding Forty Shillings; also Appeals: And in Cases of 
Felony, to commit the Person or Persons convicted thereof to close 
confinement, until the Provincial Congress shall provide and establish 
Laws and Modes of Proceeding in such cases. 

9. That these eighteen Select Men, thus convened, do choose a Clerk 
to record the Transactions of the said Convention; and that the said 
Clerk, upon the Application of any Person or Persons aggrieved do 
issue his Warrant to one of the Constables, to summons and warn the 
said Offender to appear before the Convention at their next sitting, to 
answer the aforesaid Complaint. 

10. That any Person making Complaint upon Oath to the Clerk, or 
any Member of the Convention, that he has Reason to suspect that any 
Person or Persons indebted to him in a Sum above Forty Shillings, do 
intend clandestinely to withdraw from the County without paying 
such a Debt; the Clerk, or such Member, shall issue his Warrant to the 
Constable, commanding him to take the said Person or Persons into 
safe Custody, until the next sitting of the Convention. 

11. That when a Debtor for a Sum below Forty Shillings shall ab- 
scond and leave the County, the Warrant granted as aforesaid shall 
extend to any Goods or Chattels of the said Debtor as may be found, 
and such Goods or Chattels be seized and held in Custody by the"Con- 
stable for the space of Thirty Days; in which Term if the Debtor fails 
to return and discharge the Debt, the Constable shall return the War- 
rant to one of the Select Men of the Company where the Goods and 
Chattels were found, who shall issue Orders to the Constable to sell 
such a Part of the said goods as shall amount to the Sum due; that 
when the Debt exceeds Forty Shillings, the Return shall be made to the 
Convention, who shall issue the Orders for Sale. 

12. That Receivers and Collectors for Quitrents, Public & County 
Taxes, do pay the same into the Hands of the Chairman of this Com- 
mittee, to be by them disbursed as the public Exigencies may require. 
And that such Receivers and Collectors proceed no farther in their 
Office until they be approved of by, and have given to this Committee 
good & sufficient Security for a faithful Return of such Monies when 
collected. 

13. That the Committee be accountable to the County for the Ap- 
plication of all Monies received from such Officers. 

14. That all these Officers hold their Commissions during the Pleas- 
ure of their respective Constituents. 



APPENDIX 505 

15. That this Committee will sustain all Damages that may ever Appendix 
hereafter accrue to all, or any of these Officers thus appointed, and thus VII 
acting, on Account of their Obedience and Conformity to these Re- 
solves. 

16. That whatever Person shall hereafter receive a Commission 
from the Crown, or attempt to exercise any such Commission hereto- 
fore received, shall be deemed an Enemy to his Country; and upon 
Information being made to the Captain of the Company where he 
resides, the said Captain shall cause him to be apprehended, and con- 
veyed before the two Select Men of the said Company, who, upon Proof 
of the Fact, shall commit him the said Offender into safe Custody, until 
the next sitting of the Convention, who shall deal with him as Prud- 
ence may direct. 

17. That any Person refusing to yield Obedience to the above Re- 
solves shall be deemed equally criminal, and liable to the same Pun- 
ishments as the Offenders above last mentioned. 

18. That these Resolves be in full Force and Virtue, until Instruc- 
tions from the General Congress of this Province, regulating the Juris- 
prudence of this Province, shall provide otherwise, or the Legislative 
Body of Great Britain resign its unjust and arbitrary Pretensions with 
respect to America. 

19. That the several Militia Companies in this County do provide 
themselves with proper Arms and Accuetrements, and hold themselves 
in constant Readiness to execute the Commands and Directions of the 
Provincial Congress, and of this Committee. 

20. That this Committee do appoint Colonel Thomas Polk, and Dr 
Joseph Kennedy, to purchase 300 lb. of powder, 600 lb. of lead, and 
1000 Flints; and deposit the same in some safe place, hereafter to be 
appointed by the Committee. 

Signed by Order of the Committee. 

E. H. Brevard, 
Clerk of the Committee. 



THE NOW DISCREDITED DRAFT OF A DECLARATION OF INDE- 
PENDENCE PURPORTING TO HAVE BEEN MADE ON MAY 20, 

- 1775, BY A CONVENTION HELD IN CHARLOTTE, MECKLENBURG 
COUNTY, NORTH CAROLINA, ON THAT DAY 

When in the winter of 1818-19 the subject was a topic of conversa- 
tion at Washington, Senator Nathaniel Macon and William David- 
son, the Representative from the Mecklenburg District, wrote to per- 
sons in that section of the country for information relative to the 
matter. Davidson received from Dr. Joseph McKnitt Alexander a full 
account of the disputed event, which he said he had copied from papers 
left by his father, John McKnitt Alexander. William B. Alexander, 
the brother of Dr. Alexander, wrote to Macon on February 7, 1819, 
that the latter had furnished Davidson with all that could be found. 



506 APPENDIX 

Appendix "Nearly all of my father's papers," he said, "were burned in the spring 
VII of 1800, which destroyed the papers now wanted, as I believe he acted 

as the secretary to the Committee that declared independence for this 
County in 1775." Macon, after endeavouring to procure information 
to verify statements in the document, thus received by Davidson from 
Dr. Alexander, sent it with an old proclamation that William B. Alex- 
ander had found among his father's papers to the Edjtor of the Ra- 
leigh Register and North Carolina Gazette, published in Raleigh, North 
Carolina. It appears in the issue of Friday April 30, 18 19 (vol. xx, no. 
1023), as follows: — j 

DECLARATION OF INDEPENDENCE 

It is not probably known to many of our readers, that the citizens 
of Mecklenburg County, in this State, made a Declaration of Inde- 
pendence more than a year before Congress made theirs. The follow- 
ing Document on the subject has lately come to the hands of the Edi- 
tor from unquestionable authority, and is published that it may go 
down to posterity. 

North Carolina, Mecbxenburg County 
May 20, 1775 

In the spring of 1775, the leading characters of Mecklenburg County, 
stimulated by that enthusiastic patriotism which elevates the mind 
above considerations of individual aggrandisement, and scorning to 
shelter themselves, from the impending storm by submission to lawless 
power, &c. &c., held several detached meetings, in each of which the indi- 
vidual sentiments were " that the cause of Boston was the cause of all " ; 
that their destinies were indissolubly connected with those of their 
Eastern fellow-citizens — and that they must either submit to all the 
impositions which an unprincipled, and to them an unrepresentative Par- 
liament might impose — or support their brethren who were doomed to 
sustain the first shock of that power, which, if successful there, would ul- 
timately overwhelm all in the common calamity. Conformably to these 
principles. Col. Adam Alexander, through solicitations, issued an order 
to each Captain's Company in the County of Mecklenburg (then com- 
prising the present County of Cabarrus), directing each Militia Com- 
pany to elect two persons, and delegate to them ample power to 
devise ways and means to aid and assist their suffering brethren in 
Boston, and also generally to adopt measures to extricate themselves 
from the impending storm, & to secure unimpaired their inalienable 
rights, privileges, and liberties from the dominant grasp of British 
imposition and tyranny. 

In conforming to said Order, on the 19th of May, 1775, the said dele- 
gation met in Charlotte, vested with unlimited powers; at which time 
official news, by express, arrived of the Battle of Lexington on that 
day of the preceding month. 

Every delegate felt the value & importance of the prize, & the aw- 



APPENDIX 507 

ful & solemn crisis which had arrived, — every bosom swelled with Appendix 
indignation at the malice, inveteracy, and insatiable revenge develojjed VII 

in the late attack at Lexington. The universal sentiment was: let 
us not flatter ourselves that popular harangues — or resolves; that 
popular vapor will avert the storm, or vanquish our common enemy 
— let us deliberate — let us calculate the issue — the probable result; 
and then let us act with energy as brethren leagued to preserve our 
property — our lives — and what is still more endearing, the liberties 
of America. 

Abraham Alexander was then elected Chairman, and John McKnitt 
Alexander, Clerk. After a free and full discussion of the various ob- 
jects for which the delegation had been convened, it was unanimously 
Ordained — 

1. Resolved, That whosoever directly or indirectly abetted, or in any 
way, form or manner countenanced the unchartered and dangerous 
invasion of our rights, as claimed by Great-Britain, is an enemy to 
this Country, — to America, — and to the inherent and inalienable 
rights of man. 

2. Resolved, That we the citizens of Mecklenburg County do hereby 
dissolve the political bands which have connected us to the Mother 
Country, and hereby absolve ourselves from all allegiance to the Brit- 
ish Crown, and abjure all political connection, contract or association 
with that Nation, who have wantonly trampled on our rights and liber- 
ties — and inhumanly shed the innocent blood of American patriots 
at Lexington. 

3. Resolved, That we do hereby declare ourselves a free and inde- 
pendent People, are and of right ought to be, a sovereign and self- 
governing Association, under the control of no power other than that 
of our God and the General Government of the Congress ; to the main- 
tenance of which independence, we solemnly pledge to each other our 
mutual co-operation, our lives, our fortunes, and our most sacred honor. 

4. Resolved, That as we now acknowledge the existence and control 
of no law or legal officer, civil or military, within this County, we do 
hereby ordain and adopt, as a rule of life, all, each and every of our 
former laws, — wherein nevertheless, the Crown of Great-Britain 
never can be considered as holding rights, privileges, immunities or 
authority therein. 

5. Resolved, That it is also further decreed, that all, each and every 
military officer in this County is hereby re-instated to his former com- 
mand and authority, he acting conformably to these regulations. 
And that every member present of this delegation shall henceforth be 
a civil officer, viz.: a Justice of the Peace, in the character of a "Com- 
mittee man," to issue process, hear and determine all matters of con- 
troversy, according to said adopted laws, and to preserve peace, and 
union, and harmony in said County, — and to use every exertion to 
spread the love of country and fire of freedom throughout America, 
until a more general and organized government be established in this 
province. 



508 APPENDIX 

Appendix A number of bye-laws were also added, merely to protect the Asso- 
VII elation from confusion and to regulate their general conduct as citizens. 

After sitting in the Courthouse all night, neither sleepy, hungry, nor 
fatigued, and after discussing every paragraph, they were all passed, 
sanctioned and declared unanimously, about 2 o'clock, A. M. May 20. 
In a few days a deputation of said delegation convened, when Capt. 
James Jack of Charlotte was deputed as express to the Congress at 
Philadelphia, with a copy of said Resolves and Proceedings, together 
with a letter addressed to our three Representatives there, viz : Richard 
Caswell, Wm. Hooper and Joseph Hughes — under express injunction, 
personally, and through the state representation, to use all possible 
means to have said proceedings sanctioned and approved by the Gen- 
eral Congress. On the return of Capt. Jack, the delegation learned that 
their proceedings were individually approved by the members of Con- 
gress, but that it was deemed premature to lay them before the House. 
A joint letter from said three members of Congress was also received, 
complimentary of the zeal in the common cause, and recommending 
perseverance, order and energy. 

The subsequent harmony, unanimity and exertion in the cause of 
liberty and independence, evidently resulting from these regulations, 
and the continued exertion of said delegation, apparently tranquilised 
this section of the State, and met with the concurrence and high appro- 
bation of the Council of Safety, who held their sessions at Newbern and 
Wilmington alternately, and who confirmed the nomination and acts 
of the delegation in their official capacity. 

From this delegation originated the Court of Enquiry of this County, 
who constituted and held their meetings regularly at Charlotte at Col. 
James Harris's and at Col. Phifer's alternately One week at each place. 
It was a civil Court founded on military process. Before this judicature 
all suspicious persons were made to appear, who were formally tried 
and banished, or continued under guard. Its jurisdiction was as un- 
limited as toryism, and its decrees as final as the confidence and patri- 
otism of the County. Several were arrested and brought before them 
from Lincoln, Rowan and the adjacent counties — 

[The foregoing is a true copy of the papers on the above subject, 
left in my hands by John M'Knitt Alexander, dec'd; I find it men- 
tioned on file that the original book was burned April, 1800. That a 
copy of the proceedings was sent to Hugh Williamson in New York, 
then writing a History of North-Carolina, and that a copy was sent 
to Gen. W. R. Davie. 

J. McKnitt.] 

Dr. Joseph McKnitt Alexander usually omitted his surname in his 
signature because of the commonness of the name Alexander in Mecklen- 
burg, and was frequently spoken of and addressed as "J. McKnitt." 
{Gov. Graham's Address, 29-30.) 

Everything that could possibly be said in favor of the genuineness 
of the foregoing paper was said in The Address on the Mecklenburg De- 



APPENDIX 509 

claration of Independence, delivered at Charlotte, February 4, 1875, Appendix 

by the Hon. Wm. A. Graham, one of the most famous statesmen and VII 

one of the loftiest characters North Carolina ever gave to the nation. 

In 1895 Dr. George W. Graham, the worthy and able son of a noble 

sire, published an address entitled Why North Carolinians believe in 

the Mecklenburg Declaration of Independence, a paper elaborated by him 

in his later work. The Mecklenburg Declaration of Independence, May 

20, 177s, and the Lives of its Signers (1905). But despite the ability 

and character of its advocates, the case has failed not only because 

of the lack of contemporaneous documentary evidence, but because of 

many other circumstances whose discussion has swelled into quite a 

literature. For a full statement see the book entitled The Mecklenburg 

Declaration of Independence, by Wm. Henry Hoyt, A.M., 1907. In 1908 

appeared volume I of a History of North Carolina, by Samuel A'Court 

Ashe, a native writer, who is producing perhaps the most complete and 

exhaustive history of North Carolina so far written. In chapter xxvi 

(p. 449) is contained the following conclusion which should be accepted 

as the last word on the subject: "These and other circumstances lead 

to the belief that inasmuch as none of the witnesses speak of two public 

meetings, at which Colonel Polk proclaimed independence, there was 

but one such meeting; and the Resolutions which he read were those of 

May 31st, published on June 13th in Charleston; June i6th in New 

Bern, and June 23d at Wilmington, and in part, in^the Northern papers. 

If there was any other public meeting, it is not mentioned by any one. 

If there were any other Resolutions ever adopted and proclaimed, no 

copy was preserved." 



VIII 

VIRGINIA'S BILL OF RIGHTS OF 1776^ 

Appendix A declaration of rights made by the representatives of the good 
VIII people of Virginia, assembled in full and free convention; which rights 

do pertain to them and their posterity as the basis and foundation of 
government. 

Section i . That all men are by nature equally free and independ- 
ent, and have certain inherent rights, of which, when they enter into 
a state of society, they cannot, by any compact, deprive or divest their 
posterity ; namely, the enjoyment of life and liberty, with the means of 
acquiring and possessing property, and pursuing and obtaining happi- 
ness and safety. 

Sec. 2. That all power is vested in, and consequently derived from, 
the people; that magistrates are their trustees and servants, and at all 
times amenable to them. 

Sec. 3. That government is^ or ought to be, instituted for the com- 
mon benefit, protection, and security of the people, nation, or com- 
munity; of all the various modes and forms of government, that is 
best which is capable of producing the greatest degree of happiness 
and safety, and is most effectually secured against the danger of 
maladministration; and that, when any government shall be found in- 
adequate or contrary to these purposes, a majority of the community 
hath an indubitable, inalienable, and indefensible right to reform, alter, 
or abolish it, in such manner as shall be judged most conducive to the 
public weal. 

Sec. 4. That no man, or set of men, are entitled to exclusive or 
separate emoluments or privileges from the community, but in con- 
sideration of public services; which, not being descendible, neither 
ought the offices of magistrate, legislator, or judge to be hereditary. 

Sec. 5. That the legislative and executive powers of the State 
should be separate and distinct from the judiciary,^ and that the 

^ This declaration of rights was executive, and judiciary department 
framed by a convention, composed shall be separate and distinct, so 
of forty-five members of the colonial that neither exercise the powers 
house of burgesses, which met at properly belonging to the other." 
Williamsburgh, May 6, 1776, and These are the first complete dog- 
adopted this declaration June 12, matic statements as to the division 
1776. The draftsman was George of powers ever incorporated in a for- 
Mason. mal document. See Resolve 10 of 

* In the constitution adopted the Declaration of Rights of the 

June 29, 1776, by the convention First Continental Congress, Octo- 

that issued this bill of rights, it is ber, 1776. 
provided that "The legislative, 



APPENDIX 511 

members of the two first may be restrained from oppression, by feel- Appendix 

ing and participating the burdens of the people, they should, at fixed VIII 

periods, be reduced to a private station, return into that body from 

which they were originally taken, and the vacancies be supplied by 

frequent, certain, and regular elections, in which all or any part of the 

former members, to be again eligible, or ineligible, as the laws shall 

direct. 

Sec. 6. That elections of members to serve as representatives of 
the people, in assembly, ought to be free; and that all men, having 
sufficient evidence of permanent common interest with, and attachment 
to, the community, have the right of suffrage, and cannot be taxed or 
deprived of their property for public uses, without their own consent, 
or that of their representatives so elected, nor bound by any law to 
which they have not, in like manner, assented, for the public good. 

Sec. 7. That all power of suspending laws, or the execution of laws, 
by any authority without consent of the representatives of the people, 
is injurious to their rights, and ought not to be exercised. 

Sec. 8. That in all capital or criminal prosecutions a man hath a 
right to demand the cause and nature of his accusation, to be confronted 
with the accusers and witnesses, to call for evidence in his favor, and to 
a speedy trial by an impartial jury of twelve men of his vicinage, 
without whose unanimous consent he can not be found guilty; nor can 
he be compelled to give evidence against himself; that no man be de- 
prived of his liberty, except by the law of the land or the judgment of 
his peers. 

Sec. 9. That excessive bail ought not to be required, nor excessive 
fines imposed, nor cruel and unusual punishments inflicted. 

Sec. 10. That general warrants, whereby an officer or messenger 
may be commanded to search suspected places without evidence of a 
fault committed, or to seize any person or persons not named, or whose 
offence is not particularly described and! supported by evidence, are 
grievous and oppressive, and ought not to be granted. 

Sec. II. That in controversies respecting property, and in suits 
between man and man, the ancient trial by jury is preferable to any 
other, and ought to be held sacred. 

Sec. 12. That freedom of the press is one of the great bulwarks of 
liberty, and can never be restrained but by despotic governments. 

Sec. 13. That a well-regulated militia, composed of the body of the 
I)eople, trained to arms, is the proper, natural, and safe defence of a 
free state; that standing armies, in time of peace, should be avoided, as 
dangerous to liberty; and that in all cases the military should be under 
strict subordination to, and governed by, the civil power. 

Sec. 14. That the people have a right to uniform government; and, 
therefore, that no government separate from, or independent of the 
government of Virginia, ought to be erected or established within the 
limits thereof. 

Sec. 15. That no free government, or the blessings of liberty, can be 
preserved to any people, but by a firm adherence to justice, modera- 



512 APPENDIX 

Appendix tion, temperance, frugality, and virtue, and by frequent recurrence 
VIII to fundamental principles. 

Sec. 1 6. That religion, or the duty which we owe to our Creator, 
and the manner of discharging it, can be directed only by reason and 
conviction, not by force or violence; and therefore all men are equally 
entitled to the free exercise of religion according to the dictates of con- 
science; and that it is the mutual duty of all to practice Christian 
forbearance, love, and charity towards each other.* 

* Virginia's first constitution was adopted or declared by it June 29, 
framed by the convention that 1776, without submission to the 
issued this bill of rights, and was people for ratification. 



IX 

DECLARATION OF INDEPENDENCE 

In Congress, July 4, 1776 

. THE UNANIMOUS DECLARATION OF THE THIRTEEN UNITED 
STATES OF AMERICA 

When, in the course of human events, it becomes necessary for one Appendix 
people to dissolve the political bands which have connected them with IX 

another, and to assume, among the powers of the earth, the separate 
and equal station to which the laws of nature and of nature's God entitle 
them, a decent respect to the opinions of mankind requires that they 
should declare the causes which impel them to the separation. 

We hold these truths to be self-evident: — that all men are created 
equal ; that they are endowed by their Creator with certain unalienable 
rights ; that among these are life, liberty, and the pursuit of happiness. 
That to secure these rights, governments are instituted among men, 
deriving their just powers from the consent of the governed; that 
whenever any form of government becomes destructive of these ends, 
it is the right of the people to alter or to abolish it, and to institute a 
new government, laying its foundation on such principles, and organ- 
izing its powers in such form, as to them shall seem most likely to ef- 
fect their safety and happiness. Prudence, indeed, will dictate, that 
governments long established should not be changed for light and trans- 
ient causes ; and accordingly all experience hath shown that mankind 
are more disposed to suffer while evils are sufferable, than to right them- 
selves by abolishing the forms to which they are accustomed. But when 
a long train of abuses and usurpations, pursuing invariably the same 
object, evinces a design to reduce them under absolute despotism, it 
is their right, it is their duty, to throw off such government, and to pro- 
vide new guards for their future security. Such has been the patient 
sufferance of these colonies ; and such is now the necessity which con- 
strains them to alter their former systems of government. The history 
of the present King of Great Britain is a history of repeated injuries and 
usurpations, all having in direct object the establishment of an ab- 
solute tyranny over these States. To prove this, let facts be submitted 
to a candid world. 

He has refused his assent to laws the most wholesome and necessary 
for the public good. 

He has forbidden his governors to pass laws of immediate and 
pressing importance, unless suspended in their operation till his assent 
should be obtained: and when so suspended he has utterly neglected 
to attend to them. He has refused to pass other laws for the accommo- 
dation of large districts of people, unless those people would relinquish 



514 ' APPENDIX 

Appendix the right of representation in the legislature — a right inestimable to 
IX them, and formidable to tyrants only. 

He has called together legislative bodies at places unusual, uncom- 
fortable, and distant from the repository of their public records, for 
the sole purpose of fatiguing them into compliance with his measures. 

He has dissolved representative houses repeatedly, for opposing, 
with manly firmness, his invasions on the rights of the people. 

He has refused, for a long time after such dissolution, to cause others 
to be elected; whereby the legislative powers, incapable of annihila- 
tion, have returned to the people at large for their exercise; the State 
remaining, in the mean time, exposed to all the dangers of invasion 
from without and convulsions within. 

Hehasendeavoured to prevent the population of these States; for that 
purpose obstructing the laws for naturalization of foreigners; refusing 
to pass others to encourage their migration hither, and raising the 
conditions of new appropriations of lands. 

He has obstructed the administration of justice, by refusing his as- 
sent to laws for establishing judiciary powers. 

He has made judges dependent on his will alone, for the tenure of their 
offices and the amount and payment of their salaries. 

He has erected a multitude of new offices, and sent hither swarms of 
officers, to harass our people, and eat out their substance. 

He has kept among us, in times of peace, standing armies, without 
the consent of our legislatures. 

He has affected to render the military independent of, and superior 
to the civil power. 

He has combined with others to subject us to a jurisdiction foreign to 
our constitution, and unacknowledged by our laws; giving his assent 
to their acts of pretended legislation: 

For quartering large bodies of armed troops among us: 

For protecting them, by a mock trial, from punishment for any mur- 
ders which they should commit on the inhabitants of these States : 

For cutting off our trade with all parts of the world : 

For imposing taxes on us without our consent: 

For depriving us, in many cases, of the benefits of trial by jury: 

For transporting us beyond seas to be tried for pretended offences: 

For abolishing the free system of English laws in a neighbouring pro- 
vince, establishing therein an arbitrary government, and enlarging its 
boundaries, so as to render it at once an example and fit instrument for 
introducing the same absolute rule into these colonies: 

For taking away our charters, abolishing our most valuable laws, 
and altering, fundamentally, the forms of our government: 

For suspending our own legislatures, and declaring themselves in- 
vested with powers to legislate for us in all cases whatsoever. 

He has abdicated government here, by declaring us out of his pro- 
tection, and waging war against us. 

He has plundered our seas, ravaged our coasts, burnt our towns, and 
destroyed the lives of our people. 



APPENDIX 515 

He is at this time transporting large armies of foreign mercenaries Appendix 
to complete the works of death, desolation, and tyranny, already begun IX 

with circumstances of cruelty and perfidy scarcely paralleled in the most 
barbarous ages, and totally unworthy the head of a civilized nation. 

He has constrained our fellow-citizens, taken captive on the high 
seas, to bear arms against their country, to become the executioners 
of their friends and brethren, or to fall themselves by their hands. 

He has excited domestic insurrections among us, and has endeavoured 
to bring on the inhabitants of our frontiers the merciless Indian savages, 
whose known rules of warfare is an undistinguished destruction of all 
ages, sexes, and conditions. 

In every stage of these oppressions we have petitioned for redress in 
the most humble terms: our repeated petitions have been answered 
only by repeated injury. A prince, whose character is thus marked 
by every act which may define a tyrant, is unfit to be the ruler of a free 
people. 

Nor have we been wanting in attention to our British brethren. 
We have warned them, from time to time, of attempts by their legis- 
lature to extend an unwarrantable jurisdiction over us. We have re- 
minded them of the circumstances of our emigration and settlement 
here. We have appealed to their native justice and magnanimity, and 
we have conjured them by the ties of our common kindred to disavow 
these usurpations, which would inevitably interrupt our connection 
and correspondence. They too have been deaf to the voice of justice 
and consanguinity. We must, therefore, acquiesce in the necessity 
which denounces our separation, and hold them, as we hold the rest 
of mankind — enemies in war, in peace, friends. 

We, therefore, the representatives of the UNITED STATES OF 
AMERICA, in GENERAL CONGRESS assembled, appealing to the 
Supreme Judge of the World for the rectitude of our intentions, do, 
in the name and by the authority of the good people of these Colonies, 
solemnly publish and declare, that these United Colonies are, and of 
right ought to be, free and independent States; that they are absolved 
from all allegiance to the British Crown, and that all political connection 
between them and the State of Great Britain is, and ought to be, to- 
tally dissolved ; and that, as FREE AND INDEPENDENT ST A TES, 
they have full power to levy war, conclude peace, contract alliances, 
establish commerce, and to do all other acts and things which IN- 
DEPENDENT STATES may of right do. And, for the support of 
this declaration, with a firm reliance on the protection of DIVINE 
PROVIDENCE, we mutually pledge to each other our lives, our for- 
tunes, and our sacred honour. 

JOHN HANCOCK. 

New Hampshire. New York. 

JosiAH Bartlett, William Floyd, 

William Whipple, Philip Livingston, 

Matthew Thornton. Francis Lewis, 

Lewis Morris. 



516 



APPENDIX 



Appendix 
IX 



Massachusetts Bay. 

Samuel Adams, 
John Adams, 
Robert Treat Paine, 
Eldridge Gerry. 



New Jersey. 

Richard Stockton, 
John Witherspoon, 
Francis Hopkinson, 
John Hart, 
Abraham Clark, 



Rhode Island, &c. 

Stephen Hopkins, 
William Ellery. 



Connecticut. 

Roger Sherman, 
Samuel Huntington, 
William Williams, 
Oliver Wolcott. 

Delaware. 

C^sAR Rodney, 
George Read, 
Thomas McKean. 

Maryland. 

Samuel Chase, 
William Paca, 
Thomas Stone, 
Charles Carroll of 
Carrollton. 

Virginia. 

George Wythe, 
Richard Henry Lee, 
Thomas Jefferson, 
Benjamin Harrison, 
Thomas Nelson, Jr., 
Francis Lightfoot Lee, 
Carter Braxton. 



Pennsylvania. 

Robert Morris, 
Benjamin Rush, 
Benjamin Franklin, 
John Morton, 
George Clymer, 
James Smith, 
George Taylor, 
James Wilson, 
George Ross. 

North Carolina. 

William Hooper. 
Joseph Hewes, 
John Penn. 

South Carolina. 

Edward Rutledge, 
Thomas Heyward, Jr., 
Thomas Lynch, Jr., 
Arthur Middleton. 



Georgia. 

Button Gwinnett, 
Lyman Hall, 
George Walton. 



X 



ARTICLES OF CONFEDERATION, NOV. 15, 1777^ 

To all to whom these Presents shall come, we the undersigned Delegates oj 
the States affixed to our Names send greeting 

Whereas the Delegates of the United States of America in Congress 
assembled did on the fifteenth day of November in the Year of our 
Lord One Thousand Seven Hundred and Seventyseven, and in the 
Second Year of the Independence of America, agree to certain Articles 



f ^ Congress Resolved, on the nth 
of June, 1776, that a committee 
should be appointed to prepare and 
digest the form of a confederation to 
be entered into between the Colo- 
nies; and on the day following, after 
it had been determined that the 
committee should consist of a mem- 
ber from each Colony, the following 
persons were appointed to perform 
that duty, to wit: Mr. Bartlett, Mr. 
S. Adams, Mr. Hopkins, Mr. Sher- 
man, Mr. R. R. Livingston, Mr. 
Dickinson, Mr. M'Kean, Mr. Stone, 
Mr. Nelson, Mr. Hewes, Mr. E. 
Rutledge, and Mr. Gwinnett. Upon 
the report of this committee, the 
subject was, from time to time, de- 
bated, until the 15th of November, 
1777, when a copy of the confedera- 
tion being made out, and sundry 
amendments made in the diction, 
without altering the sense, the same 
was finally agreed to. Congress, at 
the same time, directed that the 
articles should be proposed to the 
legislatures of all the United States, 
to be considered, and if approved 
of by them, they were advised to 
authorize their delegates to ratify 
the same in the Congress of the 
United States; which being done, 
the same should become conclusive. 
Three hundred copies of the Articles 
of Confederation were ordered to be 



printed for the use of Congress; and 
on the 17th of November, the form 
of a circular letter to accompany 
them was brought in by a committee 
appointed to prepare it, and being 
agreed to, thirteen copies of it were 
ordered to be made out, to be signed 
by the president and forwarded to 
the several States, with copies of the 
confederation. On the 29th of No- 
vember ensuing, a committee of 
three was appointed, to procure a 
translation of the articles to be made 
into the French language, and to 
report an address to the inhabitants 
of Canada, &c. On the 26th of June, 
1778, the form of a ratification of 
the Articles of Confederation was 
adopted, and, it having been en- 
grossed on parchment, it was signed 
on the 9th of July on the part and in 
behalf of their respective States, by 
the delegates of New Hampshire, 
Massachusetts Bay, Rhode Island 
and Providence Plantations, Con- 
necticut, New York, Pennsylvania, 
Virginia, and South Carolina, agree- 
ably to the powers vested in them. 
The delegates of North Carolina 
signed on the 21st of July, those of 
Georgia on the 24th of July, and 
those of New Jersey on the 26th of 
November following. On the 5th of 
May, 1779, Mr. Dickinson and Mr. 
Van Dyke signed in behalf of the 



Appendix 
X 



5l8 APPENDIX 

Appendix of Confederation and perpetual Union between the States of Newhamp- 
X shire, Massachusetts-bay, Rhodeisland and Providence Plantations, 

Connecticut, New- York, New- Jersey, Pennsylvania, Delaware, Mary- 
land, Virginia, North-Carolina, South-Carolina and Georgia in the 
Words following, viz. : 

Articles of Confederation and perpetual Union between the States of 
Newhampshire, Massachusetts-bay, Rhodeisland and Providence Plan- 
tations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, 
Maryland, Virginia, North-Carolina, South- Carolina and Georgia. 

Article I. The stile of this confederacy shall be "The United States 
of America." 

Article II. Each State retains its sovereignty, freedom and inde- 
pendence, and every power, jurisdiction and right, which is not by this 
confederation expressly delegated to the United States, in Congress 
assembled. 

Article III. The said States hereby severally enter into a firm 
league of friendship with each other, for their common defence, the 
security of their liberties, and their mutual and general welfare, binding 
themselves to assist each other, against all force offered to, or attacks 
made upon them, or any of them, on account of religion, sovereignty, 
trade, or any other pretence whatever. 

Article IV. The better to secure and perpetuate mutual friendship 
and intercourse among the people of the different States in this Union, 
the free inhabitants of each of these States, paupers, vagabonds and 
fugitives from justice excepted, shall be entitled to all privileges and 
immunities of free citizens in the several States; and the people of each 
State shall have free ingress and regress to and from any other State, 
and shall enjoy therein all the privileges of trade and commerce, subject 
to the same duties, impositions and restrictions as the inhabitants 
thereof respectively, provided that such restrictions shall not extend 
so far as to prevent the removal of property imported into any State, 
to any other State of which the owner is an inhabitant; provided also 
that no imposition, duties or restriction shall be laid by any State, on 
the property of the United States, or either of them. 

If any person guilty of, or charged with treason, felony, or other high 
misdemeanor in any State, shall flee from justice, and be found in any 

State of Delaware, Mr. M'Kean age of the circumstance to dissem- 

having previously signed in Febru- inate opinions of an ultimate dis- 

ary, at which time he produced a solution of the Union, the legislature 

power to that effect. Maryland did of the State passed an act to em- 

not ratify until the year 1781. She power their delegates to subscribe 

had instructed her delegates, on the and ratify the articles, which was 

iSthof December, 1778, not to agree accordingly done by Mr. Hanson 

to the confederation until matters and Mr. Carroll, on the 1st of March 

respecting the western lands should of that year, which completed the 

be settled on principles of equity ratifications of the act ; and Congress 

and sound policy; but, on the 30th assembled on the 2d of March under 

of January, 1781, finding that the the new powers, 
enemies of the country took advant- 



APPENDIX 519 

of the United States, he shall upon demand of the Governor or Execu- Appendix 
tive power, of the State from which he fled, be delivered up and removed X , 

to the State having jurisdiction of his offence. 

Full faith and credit shall be given in each of these States to the 
records, acts and judicial proceedings of the courts and magistrates of 
every other State. 

Article V. For the more convenient management of the general 
interests of the United States, delegates shall be annually appointed in 
such manner as the legislature of each State shall direct, to meet in 
Congress on the first Monday in November, in every year, with a power 
reserved to each State, to recall its delegates, or any of them, at any 
time within the year, and to send others in their stead, for the remainder 
of the year. 

No State shall be represented in Congress by less than two, nor by 
more than seven members; and no person shall be capable of being a 
delegate for more than three years in any term of six years ; nor shall any 
person, being a delegate, be capable of holding any office under the 
United States, for which he, or another for his benefit receives any sal- 
ary, fees or emolument of any kind. 

Each State shall maintain its own delegates in a meeting of the States, 
and while they act as members of the committee of the States. 

In determining questions in the United States, in Congress assembled, 
each State shall have one vote. 

Freedom of speech and debate in Congress shall not be impeached or 
questioned in any court, or place out of Congress, and the members of 
Congress shall be protected in their persons from arrests and imprison- 
ments, during the time of their going to and from, and attendance on 
Congress, except for treason, felony, or breach of the peace. 

Article VI. No State without the consent of the United States in 
Congress assembled, shall send any embassy to, or receive any embassy 
from, or enter into any conference, agreement, alliance or treaty with 
any king, prince or state ; nor shall any person holding any office of profit 
or trust under the United States, or any of them, accept of any present, 
emolument, office or title of any kind whatever from any king, prince or 
foreign state ; nor shall the United States in Congress assembled, or any 
of them, grant any title of nobility. 

No two or more States shall enter into any treaty, confederation or 
alliance whatever between them, without the consent of the United 
States in Congress assembled, specifying accurately the purposes for 
which the same is to be entered into, and how long it shall continue. 

No State shall lay any imposts or duties, which may interfere with any 
stipulations in treaties, entered into by the United States in Congress 
assembled, with any king, prince or state, in pursuance of any treaties 
already proposed by Congress, to the courts of France and Spain. 

No vessels of war shall be kept up in time of peace by any State, 
except such number only, as shall be deemed necessary by the United 
States in Congress assembled, for the defence of such State, or its trade; 
nor shall any body of forces be kept up by any State, in time of peace. 



520 APPENDIX 

Appendix except such number only, as in the judgment of the United States, in 
X Congress assembled, shall be deemed requisite to garrison the forts 

necessary for the defence of such State; but every State shall always 
keep up a well regulated and disciplined militia, sufficiently armed and 
accoutered, and shall provide and constantly have ready for use, in 
public stores, a due number of field pieces and tents, and a proper quan- 
tity of arms, ammunition and camp equipage. 

No State shall engage in any war without the consent of the United 
States in Congress assembled, unless such State be actually invaded by 
enemies, or shall have received certain advice of a resolution being 
formed by some nation of Indians to invade such State, and the danger 
is so imminent as not to admit of a delay, till the United States in Con- 
gress assembled can be consulted : nor shall any State grant commissions 
to any ships or vessels of war, nor letters of marque or reprisal, except it 
be after a declaration of war by the United States in Congress assembled, 
and then only against the kingdom or state and the subjects thereof, 
against which war has been so declared, and under such regulations as 
shall be established by the United States in Congress assembled, unless 
such State be infested by pirates, in which case vessels of war may be 
fitted out for that occasion, and kept so long as the danger shall con- 
tinue, or until the United States in Congress assembled shall determine 
otherwise. 

Article VII. When land-forces are raised by any State for the com- 
mon defence, all officers of or under the rank of colonel, shall be ap- 
pointed by the Legislature of each State respectively by whom such 
forces shall be raised, or in such manner as such State shall direct, and 
all vacancies shall be filled up by the State which first made the ap- 
pointment. 

Article VIII. All charges of war, and all other expenses that shall 
be incurred for the common defence or general welfare, and allowed 
by the United States in Congress assembled, shall be defrayed out of 
a common treasury, which shall be supplied by the several States, in 
proportion to the value of all land within each State, granted to or sur- 
veyed for any person, as such land and the buildings and improvements 
thereon shall be estimated according to such mode as the United States 
in Congress assembled, shall from time to time direct and appoint. 

The taxes for paying that proportion shall be laid and levied by the 
authority and direction of the Legislatures of the several States within 
the time agreed upon by the United States in Congress assembled. 

Article IX. The United States in Congress assembled, shall have 
the sole and exclusive right and power of determining on peace and war, 
except in the cases mentioned in the sixth article — of sending and 
receiving ambassadors — entering into treaties and alliances, provided 
that no treaty of commerce shall be made whereby the legislative power 
of the respective States shall be restrained from imposing such imposts 
and duties on foreigners, as their own people are subjected to, or from 
prohibiting the exportation or importation of any species of goods or 
commodities whatsoever — of establishing rules for deciding in all 



APPENDIX 521 

cases, what captures on land or water shall be legal, and In what manner Appendix 

prizes taken by land or naval forces in the service of the United States X 

shall be divided or appropriated — of granting letters of marque and 

reprisal in times of peace — appointing courts for the trial of piracies and 

felonies committed on the high seas and establishing courts for receiving 

and determining finally appeals in all cases of captures, provided that 

no member of Congress shall be appointed a judge of any of the said 

courts. 

The United States in Congress assembled shall also be the last resort 
on appeal in all disputes and differences now subsisting or that hereafter 
may arise between two or more States concerning boundary, jurisdic- 
tion, or any other cause whatever; which authority shall always be 
exercised in the manner following. Whenever the legislative or execu- 
tive authority or lawful agent of any State in controversy with another 
shall present a petition to Congress, stating the matter in question and 
praying for a hearing, notice thereof shall be given by order of Congress 
to the legislative or executive authority of the other State in contro- 
versy, and a day assigned for the appearance of the parties by their 
lawful agents, who shall then be directed to appoint by joint consent, 
commissioners or judges to constitute a court for hearing and determin- 
ing the matter in question : but if they cannot agree. Congress shall name 
three persons out of each of the United States, and from the list of such 
persons each party shall alternately strike out one, the petitioners be- 
ginning, until the number shall be reduced to thirteen; and from that 
number not less than seven, nor more than nine names as Congress shall 
direct, shall in the presence of Congress be drawn out by lot, and the 
persons whose names shall be so drawn or any five of them, shall be 
commissioners or judges, to hear and finally determine the controversy, 
so always as a major part of the judges who shall hear the cause shall 
agree in the determination: and if either party shall neglect to attend 
at the day appointed, without showing reasons, which Congress shall 
judge sufficient, or being present shall refuse to strike, the Congress 
shall proceed to nominate three persons out of each State, and the Secre- 
tary of Congress shall strike in behalf of such party absent or refusing; 
and the judgment and sentence of the court to be appointed, in the 
manner before'prescribed, shall be final' and conclusive; and if any of the 
parties shall refuse to submit to the authority of such court, or to appear 
or defend their claim or cause, the court shall nevertheless proceed to 
pronounce sentence, or judgment, which shall in like manner be final 
and decisive, the judgment or sentence and other proceedings being in 
either case transmitted to Congress, and lodged among the acts of Con- 
gress for the security of the parties concerned : provided that every com- 
missioner, before he sits in judgment, shall take an oath to be admin- 
istered by one of the judges of the supreme or superior court of the State 
where the cause shall be tried, "well and truly to hear and determine 
the matter in question, according to the best of his judgment, without 
favour, affection or hope of reward:" provided also that no State shall 
be deprived of territory for the benefit of the United States. 



522 APPENDIX 

Appendix All controversies concerning the private right of soil claimed under 
X different grants of two or more States, whose jurisdiction as they may 

respect such lands, and the States which passed such grants are ad- 
justed, the said grants or either of them being at the same time claimed 
to have originated antecedent to such settlement of jurisdiction, shall 
on the petition of either party to the Congress of the United States, be 
finally determined as near as may be in the same manner as is before 
prescribed for deciding disputes respecting territorial jurisdiction be- 
tween different States. 

The United States in Congress assembled shall also have the sole and 
exclusive right and power of regulating the alloy and value of coin struck 
by their own authority, or by that of the respective States — fixing the 
standard of weights and measures throughout the United States — 
regulating the trade and managing all affairs with the Indians, not 
members of any of the States, provided that the legislative right of any 
State within its own limits be not infringed or violated — establishing 
and regulating post-offices from one State to another, throughout all 
the United States, and exacting such postage on the papers passing thro' 
the same as may be requisite to defray the expenses of the said office — 
appointing all officers of the land forces, in the service of the United 
States, excepting regimental officers — appointing all the officers of the 
naval forces, and commissioning all officers whatever in the service of 
the United States — making rules for the government and regulation 
of the said land and naval forces, and directing their operations. 

The United States in Congress assembled shall have authority to 
appoint a committee, to sit in the recess of Congress, to be denominated 
"a Committee of the States," and to consist of one delegate from each 
State; and to appoint such other committees and civil officers as may 
be necessary for managing the general affairs of the United States under 
their direction — to appoint one of their number to preside, provided 
that no person be allowed to serve in the office of president more than 
one year in any term of three years ; to ascertain the necessary sums of 
money to be raised for the service of the United States, and to appropri- 
ate and apply the same for defraying the public expenses — to borrow 
money, or emit bills on the credit of the United States, transmitting 
every half year to the respective States an account of the sums of money 
so borrowed or emitted — to build and equip a navy — to agree upon 
the number of land forces, and to make requisitions from each State for 
its quota, in proportion to the number of white inhabitants in such 
State; which requisition shall be binding, and thereupon the Legislature 
of each State shall appoint the regimental officers, raise the men and 
cloath, arm and equip them in a soldier like manner, at the expense of 
the United States; and the officers and men so cloathed, armed and 
equipped shall march to the place appointed, and within the time agreed 
on by the United States in Congress assembled : but if the United States 
in Congress assembled shall, on consideration of circumstances judge 
proper that any State should not raise men, or should raise a smaller 
number than its quota, and that any other State should raise a greater 



APPENDIX 523 

number of men than the quota thereof, such extra number shall be Appendix 
raised, officered, cloathed, armed and equipped in the same manner as X 

the quota of such State, unless the legislature of such State shall judge 
that such extra number cannot be safely spared out of the same, in 
which case they shall raise, officer, cloath, arm and equip as many of such 
extra number as they judge can be safely spared. And the officers and 
men so cloathed, armed and equipped, shall march to the place ap- 
pointed, and within the time agreed on by the United States in Congress 
assembled. 

The United States in Congress assembled shall never engage in a war, 
nor grant letters of marque and reprisal in time of peace, nor enter into 
any treaties or alliances, nor coin money, nor regulate the value thereof, 
nor ascertain the sums and expenses necessary for the defence and wel- 
fare of the United States, or any of them, nor emit bills, nor borrow 
money on the credit of the United States, nor appropriate money, nor 
agree upon the number of vessels of war, to be built or purchased, or the 
number of land or sea forces to be raised, nor appoint a commander in 
chief of the army or navy, unless nine States assent to the same: nor 
shall a question on any other point, except for adjourning from day to 
day, be determined, unless by the votes of a majority of the United 
States in Congress assembled. 

The Congress of the United States shall have power to adjourn to any 
time within the year, and to any place within the United States, so that 
no period of adjournment be for a longer duration than the space of 
six months, and shall publish the journal of their proceedings monthly, 
except such parts thereof relating to treaties, alliances or military opera- 
tions, as in their judgment require secresy ; and the yeas and nays of the 
delegates of each State on any question shall be entered on the journal, 
when it is desired by any delegate ; and the delegates of a State, or any 
of them, at his or their request shall be furnished with a transcript of the 
said journal, except su'ch parts as are above excepted, to lay before the 
Legislatures of the several States. 

Article X. The committee of the States, or any nine of them, shall 
be authorized to execute, in the recess of Congress, such of the powers 
of Congress as the United States in Congress assembled, by the consent 
of nine States, shall from time to time think expedient to vest them 
with; provided that no power be delegated to the said committee, for 
the exercise of which, by the articles of confederation, the voice of nine 
States in the Congress of the United States assembled is requisite. 

Article XI. Canada acceding to this confederation, and joining in 
the measures of the United States, shall be admitted into, and entitled 
to all the advantages of this Union: but no other colony shall be 
admitted into the same, unless such admission be agreed to by nine 
States. 

Article XII. All bills of credit emitted, monies borrowed and debts 
contracted by, or under the authority of Congress, before the assem- 
bling of the United States, m pursuance of the present confederation, 
shall be deemed and considered as a charge against the United States, 



524 APPENDIX 

Appendix for payment and satisfaction whereof the said United States, and the 
X public faith are hereby solemnly pledged. 

Article XIII. Every State shall abide by the determinations of the 
United States in Congress assembled, on all questions which by this 
confederation are submitted to them. And the articles of this confeder- 
ation shall be inviolably observed by every State, and the Union shall 
be perpetual; nor shall any alteration at any time hereafter be made 
in any of them ; unless such alteration be agreed to in a Congress of the 
United States, and be afterwards confirmed by theXegislatures of every 
State. 

And whereas it has pleased the Great Governor of the world to in- 
cline the hearts of the Legislatures we respectively represent in Con- 
gress, to approve of, and to authorize us to ratify the said articles of 
confederation and perpetual union. Know ye that we the undersigned 
delegates, by virtue of the power and authority to us given for that pur- 
pose, do by these presents, in the name and in behalf of our respective 
constituents, fully and entirely ratify and confirm each and every of the 
said articles of confederation and perpetual union, and all and singular 
the matters and things therein contained: and we do further solemnly 
plight and engage the faith of our respective constituents, that they 
shall abide by the determinations of the United States in Congress 
assembled, on all questions, which by the said confederation are sub- 
mitted to them. And that the articles thereof shall be inviolably ob- 
served by the States we respectively represent, and that the Union 
shall be perpetual. 

In witness whereof we have hereunto set our hands in Congress. Done 
at Philadelphia in the State of Pennsylvania the ninth day of July 
in the year of our Lord one thousand seven hundred and seventy- 
eight, and in the third year of the independence of America.* 

On the part & behalf of the State of New Hampshire. 
JosiAH Bartlett, John Wentworth, Junr., 

August 8th, 1778. 

On the part and behalf of the State of Massachusetts Bay. 
John Hancock, Francis Dana, 

Samuel Adams, James Lovell, 

Elbridge Gerry, Samuel Holten. 

On the part and behalf of the State of Rhode Island and Providence 
Plantations. 
William Ellery, John Collins. 

Henry Marchant, 

* From the circumstance of dele- their names as they happened to be 

gates from the same State having present in Congress, after they had 

signed the Articles of Confederation been authorized by their constitu- 

at different times, as appears by the ents. 
dates, it is probable they affixed 



APPENDIX 525 

On the part and behalf of the State of Connecticut. Appendix 

Roger Sherman, Titus Hosmer, 

Samuel Huntington, Andrew Adams. 

Oliver Wolcott, 

On the part and behalf of the State of New York. - 

Jas. Duane, Wm. Duer, 

Fra. Lewis, Gouv. Morris. 

On the part and in behalf of the State of New Jersey, Novr. 26, 1778. 
Jno. Witherspoon, Nathl. Scudder. 

On the part and behalf of the State of Pennsylvania. 

Robt. Morris, William Clingan, 

Daniel Roberdeau, Joseph Reed, 22d July, 1778. 

Jona. Bayard Smith, 

On the part &f behalf of the State of Delaware. 

Tho. M'Kean, Feby. 12, 1779. Nicholas Van Dyke.' , 
John Dickinson, May 5th, 1779. 

On the part and behalf of the State of Maryland. 
John Hanson, March i, 1781. Daniel Carroll, Mar. i, 1781. 

On the part and behalf of the State of Virginia. 

Richard Henry Lee, Jno. Harvie, 

John Banister, Francis Lightfoot Lee. 

Thomas Adams, 

On the part and behalf of the State of No. Carolina. 

John Penn, July 21st, 1778. Jno. Williams. 

Corns. Harnett, 

On the part &f behalf of the State of South Carolina. 

Henry Laurens, Richd. Hutson, 

William Henry Drayton, Thos. Heyward, Junr. 

Jno. Matthews, 

On the part & behalf of the State of Georgia. 

Jno. Walton, 24th July, 1778. Edwd. Langworthy. 
Edwd. Telfair, 



A 

DISSERTATION 

ON THE 

POL ITIC AL U N ION 

AND 

CON ST I TUTION 

OF THE 

THIRTEEN UNITED STATES 

OF 

NORTH AMERICA, 

which is necessary to their Preservation and Happiness; 
humbly offered to the Public 



By a Citizen of Philadelphia 



PHILADELPHIA 

PRINTED AND SOLD BY T. BRADFORD, IN FRONT STREET, 

THREE DOORS BELOW THE COFFEE HOUSE, 

MDCCLXXXIIl 1 

* Title-page as originally printed. 



XI 

THE EPOCH-MAKING TRACT OF PELATIAH WEB- 
STER, OF FEBRUARY i6, 1783, IN WHICH IS EM- 
BODIED THE FIRST DRAFT OF THE EXISTING 
CONSTITUTION OF THE UNITED STATES 

I. The supreme authority of any State must have power enough to Appendix 
eflfect the ends of its appointment, otherwise these ends cannot be ^I 
answered, and effectually secured; at best they are precarious. But 

at the same time, 

II. The supreme authority ought to be so limited and checked, 
if possible, as to prevent the abuse of power, or the exercise of powers 
that are not necessary to the ends of its appointment, but hurtful and 
oppressive to the subject; but to limit a supreme authority so far as to 
diminish its dignity, or lessen its power of doing good, would be to de- 
stroy or at least to corrupt it, and render it ineffectual to its ends. 

III. A number of sovereign States uniting into one Commonwealth, 
and appointing a supreme power to manage the affairs of the Union, 
do necessarily and unavoidably part with and transfer over to such su- 
preme power, so much of their own sovereignty as is necessary to render 
the ends of the union effectual, otherwise their confederation •will be an 
union without bands of union, like a cask without hoops, that may 
and probably will fall to pieces, as soon as it is put to any exercise 
which requires strength. 

In like manner, every member of civil society parts with many of his 
natural rights, that he may enjoy the rest in greater security under the 
protection of society. 

The Union of the Thirteen States of America is of mighty conse- 
quence to the security, sovereignty, and even liberty' of each of them, 
and of all the individuals who compose them ; united under a natural, 
well adjusted, and effectual Constitution, they are a strong, rich, grow- 
ing power, with great resources and means of defence, which no foreign 
power will easily attempt to invade or insult; they may easily command 
respect. 

As their exports are mostly either raw materials or provisions, and 
their imports mostly finished goods, their trade becomes a capital ob- 
ject with every manufacturing nation of Europe, and all the southern 
colonies of America; their friendship and trade will of course be courted, 
and each power in amity with them will contribute to their security. 

Their union is of great moment in another respect: they thereby form 
a superintending power among themselves, that can moderate and 
terminate disputes that may arise between different States, restrain 



528 APPENDIX 

Appendix intestine violence, and prevent any recourse to the dreadful decision 
XI of the sword. 

I do not mean here to go into a detail of all the advantages of our 
union; they offer themselves on every view, and are important enough 
to engage every honest, prudent mind, to secure and establish that 
union by every possible method, that we may enjoy the full benefit 
of it, and be rendered happy and safe under the protection it affords. 

This union, however important, cannot be supported without a Con- 
stitution founded on principles of natural truth, fitness, and utility. If 
there is one article wrong in such Constitution, it will discover itself in 
practice, by its baleful operation, and destroy or at least injure the union. 

Many nations have been ruined by the errors of their political con- 
stitution. Such errors first introduce wrongs and injuries, which soon 
breed discontents, which gradually work up into mortal hatred and re- 
sentments; hence inveterate parties are formed, which of course make 
the whole community a house divided against itself, which soon falls 
either a prey to some enemies without, who watch to devour them, 
or else crumble into their original constituent parts, and lose all re- 
spectability, strength and security. 

It is as physically impossible to secure to civil society, good cement 
of union, duration, and security without a Constitution founded on 
principles of natural fitness and right, as to raise timbers into a strong, 
compact building, which have not been framed upon true geometric 
principles; for if you cut one beam a foot too long or too short, not all 
the authority and all the force of all the carpenters can ever get it into 
its place, and make it fit with proper symmetry there. 

As the fate then of all governments depends much upon their polit- 
ical constitutions, they become an object of mighty moment to the 
happiness and well-being of society; and as the framing of such a 
Constitution requires great knowledge of the rights of men and so- 
cieties, as well as of the interests, circumstances, and even prejudices 
of the several parts of the community or commonwealth, for which it 
is intended ; it becomes a very complex subject, and of course requires 
great steadiness and comprehension of thought, as well as great know- 
ledge of men and things, to do it properly. I shall, however, attempt 
it with my best abilities, and hope from the candor of the public to es- 
cape censure, if I cannot merit praise. 

I begin with my first and great principle, viz. : That the Constitu- 
tion must vest powers in every department sufficient to secure and make 
effectual the ends of it. The supreme authority must have the power 
of making war and peace — of appointing armies and navies — of ap- 
pointing officers both civil and military — of making contracts — of 
emitting, coining, and borrowing money — of regulating trade — 
of making treaties with foreign powers — of establishing post-offices 
— and in short of doing everything which the well-being of the Com- 
monwealth may require, and which is not compatible to any particu- 
lar State, all of which require money, and cannot possibly be made 
effectual without it. 



APPENDIX 529 

They must therefore of necessity be vested with power of taxation. Appendix 
I know this is a most important and weighty truth, a dreadful engine XI 

of oppression, tyranny, and injury, when ill used; yet, from the neces- 
sity of the case it must be admitted. 

For to give a supreme authority a power of making contracts, without 
any power of payment — of appointing officers civil and military, 
without money to pay them — a power to build ships, without any 
money to do it with — a power of emitting money, without any power 
to redeem it — or of borrowing money, without any power to make 
payment, etc., etc. — such solecisms in government are so nugatory 
and absurd that I really think to offer further argument on the subject 
would be to insult the understanding of my readers. . 

To make all these payments dependent on the votes of thirteen pop- 
ular assemblies, who will undertake to judge of the propriety of every 
contract and every occasion of money, and grant or withhold supplies, 
according to their opinion, whilst at the same time the operations of 
the whole may be stopped by the vote of a single one of them, is ab- 
surd; for this renders all supplies so precarious and the public credit 
so extremely uncertain, as must in its nature render all efforts in war, 
and all regular administration in peace, utterly impracticable, as well 
as most pointedly ridiculous. Is there a man to be found who would 
lend money, or render personal services, or make contracts on such 
precarious security? Of this we have a proof of fact, the strongest of all 
proofs, a fatal experience, the surest tho' severest of all demonstration, 
which renders all other proof or argument on this subject quite un- 
necessary. 

The present broken state of our finances — public debts and bank- 
ruptcies — enormous and ridiculous depreciation of public securities 
— with the total annihilation of our public credit — prove beyond all 
contradiction the vanity of all recourse to the particular Assemblies of 
the States. The recent instance of the duty of 5 per cent on imported 
goods, struck dead, and the bankruptcies which ensued on the single 
vote of Rhode Island, affords another proof of what it is certain may 
be done again in like circumstances. 

I have another reason why a power of taxation or of raising money, 
ought to be vested in the supreme authority of our commonwealth, 
viz. : the monies necessary for the public ought to be raised by a duty 
imposed on imported goods, not a bare 5 per cent or any other per cent 
on all imported goods indiscriminately, but a duty much heavier on 
all articles of luxury or mere ornament, and which are consumed prin- 
cipally by the rich or prodigal part of the community, such as silks of all 
sorts, muslins, cambricks, lawns, superfine cloths, spirits, wines, etc., etc. 

Such an impost would ease the husbandman, the mechanic, and the 
poor; would have all the practical effects of a sumptuary law; would 
mend the economy, and increase the industry of the community; 
would be collected without the shocking circumstances of collectors 
and their warrants ; and make the quantity of tax paid always depend 
on the choice of the person who pays it. 



530 APPENDIX 

Appendix This tax can be laid by the supreme authority much more conven- 
XI iently than by the particular Assemblies, and would in no case be sub- 

ject to their appeals or modifications and, of course, the public credit 
would never be dependent on, or liable to bankruptcy by the humors 
of any particular Assembly. In an Essay on Finance, which I design 
soon to offer to the public, this subject will be treated more fully. 
(See my Sixth Essay on Free Trade and Finance, p. 229.) 

The delegates which are to form that august body, which are to 
hold and exercise the supreme authority, ought to be appointed by 
the States in any manner they please; in which they should not be 
limited by any restrictions; their own dignity and the weight they 
will hold in the great public councils, will always depend on the abil- 
ities of the persons they appoint to represent them there ; and if they 
are wise enough to choose men of sufficient abilities and respectable 
characters, men of sound sense, extensive knowledge, gravity and in- 
tegrity, they will reap the honor and advantage of such wisdom. 

But if they are fools enough to appoint men of trifling or vile char- 
acters, of mean abilities, faulty morals, or despicable ignorance, they 
must reap the fruits of such folly, and content themselves to have no 
weight, dignity, or esteem in the public councils; and what is more to 
be lamented by the Commonwealth, to do no good there. 

I have no objection to the States electing and recalling their dele- 
gates as often as they please, but think it hard and very injurious both 
to them and the Commonwealth that they should be obliged to discon- 
tinue them after three years' service, if they find them on that trial 
to be men of sufficient integrity and abilities; a man of that experience 
is certainly much more qualified to serve in the place than a new mem- 
ber of equal good character can be ; experience makes perfect in every 
kind of business — old, experienced statesmen of tried and approved 
integrity and abilities are a great blessing to a State — they acquire 
great authority and esteem as well as wisdom, and very much contribute 
to keep the system of government in good and salutary order ; and this 
furnishes the strongest reason why they should be continued in the serv- 
ice, on Plato's great maxim that " the man best qualified to serve, ought 
to be appointed." 

I am sorry to see a contrary maxim adopted in our American coun- 
sels; to make the highest reason that can be given for continuing a man 
in the public administration, assigned as a constitutional and absolute 
reason for turning him out, seems to me to be a solecism of a piece with 
many other reforms, by which we set out to surprise the world with our 
wisdom. 

If we should adopt this maxim in the common aflfairs of life, it would 
be found inconvenient, e. g., if we should make it a part of our Consti- 
tution, that a man who has served a three years' apprenticeship to the 
trade of a tailor or shoemaker should be obliged to discontinue that 
business for the three successive years, I am of opinion the country 
would soon be cleared of good shoemakers and tailors. Men are no 
more born statesmen than shoemakers or tailors. Experience is equally 
necessary to perfection in both. 



APPENDIX 531 

It seems to me that a man's inducement to qualify himself for a pub- Appendix 
lie employment and make himself master of it must be much discour- XI 

aged by this consideration, that let him take whatever pains to qualify 
himself in the best manner he must be shortly turned out, and, of 
course, it would be of more consequence to him to turn his attention 
to some other business which he might adopt when his present appoint- 
ment should expire ; and by this means the Commonwealth is in danger 
of losing the zeal, industry and shining abilities as well as services of 
their most accomplished and valuable men. 

I hear that the State of Georgia has improved on this blessed prin- 
ciple and limited the continuance of their governors to one year; the 
consequence is, they have already the ghosts of departed governors 
stalking about in every part of their State and growing more plenty 
every year; and as the price of everything is reduced by its plenty I can 
suppose governors will soon be very low there. 

This doctrine of rotation was first proposed by some sprightly 
geniuses of brilliant politics with this cogent reason : that by introduc- 
ing a rotation in the public offices we should have a great number of 
men trained up to public service, but it appears to me that it will be 
more likely to produce many jacks at all trades, but good at none. 

I think that frequent elections are a sufficient security against the 
continuance of men in public office whose conduct is not approved, 
and there can be no reason for excluding those whose conduct is ap- 
proved, and who are allowed to be better qualified than any men who 
can be found to supply their places. 

Another great object of government is the apportionment of burdens 
and benefits; for if a greater quota of burdens or a less quota of benefits 
than is just and right be allotted to any State, this ill apportionment 
will be an everlasting source of uneasiness and discontent. In the first 
case, the overburdened State will complain; in the last case, all the 
States whose quota of benefit is underrated will be uneasy ; and this is 
a case of such delicacy that it cannot be safely trusted to the arbitrary 
opinion or judgment of any body of men however august. 

Some natural principles of confessed equity, and which can be reduced 
to a certainty, ought, if possible, to be found and adopted ; for it is of 
the highest moment to the Commonwealth to obviate and, if possible, 
w^hoUy to take away such a fruitful and common source of infinite dis- 
putes as that of apportionment of quotas has ever proved in all States 
of the earth. 

The value of lands may be a good rule, but the ascertainment of that 
value is impracticable. No assessment can be made which will not be 
liable to exception and debate. To adopt a good rule in anything which 
is impracticable is absurd, for it is physically impossible that anything 
should be good for practice which cannot be practised at all; but if 
the value of lands was capable of certain assessment, yet to adopt that 
value as a rule of apportionment of quotas and at the same time to 
except from valuation large tracts of sundry States of immense value, 
which have all been defended by the joint arms of the whole Empire, and 



532 APPENDIX 

Appendix for the defence of which no additional quota of supply is to be demanded 
XI of those States to whom such lands are secured by such joint efforts 

of the States, is in its nature unreasonable, and will open a door for great 
complaint. 

It is plain without argument that such States ought either to make 
grants to the Commonwealth of such tracts of defended territory or sell 
as much of them as will pay their proper quota of defence, and pay such 
sums into the public treasury. And this ought to be done, let what rule 
of quota soever be adopted with respect to the cultivated part of the 
United States, for no proposition of natural right and justice can be 
plainer than this, that every part of valuable property which is de- 
fended, ought to contribute its quota of supply for that defence. 

If then the value of cultivated lands is found to be an impracticable 
rule of apportionment of quotas we have to seek for some other, equally 
just and less exceptionable. 

It appears to me that the number of living souls or human persons of 
whatever age, sex or condition will afford us a rule or measure of appor- 
tionment which will forever increase and decrease with the real wealth 
of the States, and will, of course, be a perpetual rule, not capable of cor- 
ruption by any circumstances of future time, which is of vast considera- 
tion in forming a constitution which is designed for perpetual duration, 
and which will in its nature be as just as to the inhabited parts of each 
State as that of the value of lands or any other that has or can be men- 
tioned. 

Land takes its value not merely from the goodness of its soil, but from 
innumerable other relative advantages, among which the population of 
the country may be considered as principal; as lands in a full settled 
country will always (ccsteris paribus) bring more than lands in thin 
settlements. On this principle, when the inhabitants of Russia, Poland, 
etc., sell real estates, they do not value them as we do by the number of 
acres, but by the number of people who live on them. 

Where any piece of land has many advantages many people will 
crowd there to obtain them, which will create many competitors for the 
purchase of it, which will, of course, raise the price. Where there are 
fewer advantages there will be fewer competitors and, of course, a less 
price; and these two things will forever be proportionate to each other, 
and, of course, the one will always be a sure index of the other. 

The only considerable objection I have ever heard to this is that the 
quality of inhabitants differs in the different States, and it is not reason- 
able that the black slaves in the Southern States should be estimated 
on a par with the white freemen in the Northern States. To discuss this 
question fairly, I think it will be just to estimate the neat value of the 
labor of both, and if it shall appear that the labor of the black person 
produces as much neat wealth to the Southern State as the labor of the 
white person does to the Northern State, I think it will follow plainly, 
that they are equally useful inhabitants in point of wealth, and there- 
fore in the case before us should be estimated alike. 

And if the amazing profits which the Southern planters boast of 



APPENDIX 533 

receiving from the labor of their slaves on their plantations are real, the Appendix 
Southern people have greatly the advantage in this kind of estimation, XI 

and as this objection comes principally from the southward, I should 
suppose that the gentlemen from that part would blush to urge it any 
farther. 

That the supreme authority should be vested with powers to termin- 
ate and finally decide controversies arising between different States, 
I take it, will be universally admitted, but I humbly apprehend that an 
appeal from the first instance of trial ought to be admitted in causes of 
great moment, on the same reasons that such appeals are admitted in 
all the States of Europe. It is well known to all men versed in courts that 
the first hearing of a cause rather gives an opening to that evidence and 
reason which ought to decide it, than such a full examination and thor- 
ough discussion, as should always precede a final judgment in causes of 
national consequence. A detail of reasons might be added, which I deem 
it unnecessary to enlarge on here. 

The supreme authority ought to have a power of peace and war, and 
forming treaties and alliances with all foreign powers; which implies a 
necessity of their also having sufficient powers to enforce the obedience 
of all subjects of the United States to such treaties and alliances; with 
full powers to unite the force of the States; and direct its operations in 
war; and to punish all transgressors in all these respects; otherwise, by 
the imprudence of a few the whole Commonwealth may be embroiled 
with foreign powers, and the operations of war may be rendered useless 
or fail much of their due effect. 

All these I conceive will be easily granted, especially the latter, as 
the power of Congress to appoint and direct the army and navy in 
war, with all departments thereto belonging, and punishing delinquents 
in them all is already admitted into practice in the course of the pre- 
sent unhappy war in which we have been long engaged. 

II. But now the great and most difficult part of this weighty subject 
remains to be considered, viz., how these supreme powers are to be con- 
stituted in such manner that they may be able to exercise with full force 
and effect the vast authorities committed to them for the good and well- 
being of the United States, and yet be so checked and restrained from 
exercising them to the injury and ruin of the States that we may with 
safety trust them with a commission of such vast magnitude — and may 
Almighty Wisdom direct my pen in this arduous discussion. 

I. The men who compose this important council must be delegated 
from all the States, and, of course, the hope of approbation and con- 
tinuance of honors will naturally stimulate them to act rightly and to 
please. The dread of censure and disgrace will naturally operate as a 
check to restrain them from improper behavior; but, however natural 
and forcible these motives may be, we find by sad experience they are 
not always strong enough to produce the effects we expect and wish from 
them. 

It is to be wished that none might be appointed that were not fit and 
adequate to this weighty business; but a little knowledge of human 



534 APPENDIX 

Appendix nature and a little acquaintance with the political history of mankind 
XI will soon teach us that this is not to be expected. 

The representatives appointed by popular elections are commonly not 
only the legal, but real, substantial representatives of their electors, i. e., 
there will commonly be about the same proportion of grave, sound, well- 
qualified men, trifling, desultory men — wild or knavish schemers — 
and dull, ignorant fools in the delegated assembly as in the body of 
electors. 

I know of no way to help this. Such delegates must be admitted as 
the States are pleased to send, and all that can be done is when they get 
together to make the best of them. 

We will suppose then they are all met in Congress, clothed with that 
vast authority which is necessary to the well-being and even existence 
of the union, that they should be vested with. How shall we empower 
them to do all necessary and effectual good, and restrain them from 
doing hurt? To do this properly I think we must recur to those natural 
motives of action, those feelings and apprehensions which usually occur 
to the mind at the very time of action ; for distant consequences how- 
ever weighty are often too much disregarded. 

Truth loves light and is vindicated by it. Wrong shrouds itself in 
darkness and is supported by delusion. An honest well-qualified man 
loves light, can bear close examination and critical inquiry and is best 
pleased when he is most thoroughly understood. A man of corrupt de- 
sign, or a fool of no design, hates close examination and critical inquiry. 
The knavery of the one and the ignorance of the other are discovered 
by it and they both usually grow uneasy before the investigation is half 
done. I do not believe that there is a more natural truth in the world 
than that divine one of our Saviour, " he that doeth truth, cometh to the 
light." I would therefore recommend that mode of deliberation which 
will naturally bring on the most thorough and critical discussion of the 
subject previous to passing any act; and for that purpose humbly pro- 
pose, 

2. That the Congress shall consist of two chambers, an upper and a 
lower house, or senate and commons, with the concurrence of both 
necessary to every act; and that every State send one or more delegates 
to each house. This will subject every act to two discussions before two 
distinct chambers of men equally qualified for the debate, equally mas- 
ters of the subject, and of equal authority in the decision. 

These two houses will be governed by the same natural motives and 
interests, viz., the good of the Commonwealth, and the approbation of 
the people. Whilst at the same time the emulation naturally arising 
between them will induce a very critical and sharp-sighted inspection 
into the motives of each other. Their different opinions will bring on 
conferences between the two houses in which the whole subject will be 
exhausted in arguments pro and con, and shame will be the portion of 
obstinate, convicted error. 

Under these circumstances a man of ignorance or evil design will be 
afraid to impose on the credulity, inattention or confidence of his house 



APPENDIX 535 

by introducing any corrupt or indigested proposition which he knows he Appendix 

must be called on to defend against the severe scrutiny and poignant XI 

objections of the other house. I do not believe the many hurtful and 

foolish legislative acts which first or last have injured all the States on 

earth have originated so much in corruption as indolence, ignorance, 

and a want of a full comprehension of the subject which a full, prying 

and emulous discussion would tend in a great measure to remove: this 

naturally rouses the lazy and idle who hate the pain of close thinking; 

animates the ambitious to excel in policy and argument; and excites the 

whole to support the dignity of their house and vindicate their own 

propositions. 

I am not of opinion that bodies of elective men, which usually com- 
pose Parliaments, Diets, Assemblies, Congresses, etc., are commonly 
dishonest; but I believe it rarely happens that there are not designing 
men among them ; and I think it would be much more difficult for them 
to unite their partisans in two houses, and corrupt or deceive them both, 
than to carry on their designs where there is but one unalarmed, un- 
apprehensive house to be managed ; and as there is no hope of making 
these bad men good, the best policy is to embarrass them and make their 
work as difficult as possible. 

In these assemblies are frequently to be found sanguine men, upright 
enough indeed, but of strong, wild projection, whose brains are always 
teeming with Utopian, chimerical plans, and political whims very de- 
structive to society. I hardly know a greater evil than to have the 
supreme council of a nation played off on such men's wires; such base- 
less visions at best end in darkness, and the dance, though easy and 
merry enough at first, rarely fails to plunge the credulous, simple fol- 
lowers into sloughs and bogs at last. 

Nothing can tend more effectually to obviate these evils, and to 
mortify and cure such maggoty brains, than to see the absurdity of their 
projects exposed by the several arguments and keen satire which a full, 
emulous and spirited discussion of the subject will naturally produce. 
We have had enough of these geniuses in the short course of our politics 
both in our national and provincial councils, and have felt enough of 
their evil effects to induce us to wish for any good method to keep our- 
selves clear of them in future. 

The consultations and decisions of national councils are so very 
important that the fate of millions depends on them, therefore no man 
ought to speak in such assemblies without considering that the fate of 
millions hangs on his tongue, and of course a man can have no right in 
such august councils to utter indigested sentiments, or indulge himself 
in sudden, unexamined flights of thought; his most tried and improved 
abilities are due to the State who have trusted him with their most 
important interests. 

A man must therefore be most inexcusable who is either absent dur- 
ing such debates, or sleeps, or whispers, or catches flies during the ar- 
gument, and just rouses when the vote is called to give his yea or nay 
to the weal or woe of a nation. Therefore it is manifestly proper that 



536 APPENDIX 

Appendix every natural motive that can operate on his understanding or his pas- 
XI sions to engage his attention and utmost efforts should be put in prac- 

tice, and that his present feelings should be raised by every motive of 
honor and shame to stimulate him to every practicable degree of dilig- 
ence and exertion to be as far as possible useful in the great discussion. 

I appeal to the feelings of every reader, if he would not (were he in 
either house) be much more strongly and naturally induced to exert 
his utmost abilities and attention to any question which was to pass 
through the ordeal of a spirited discussion of another house, than he 
would do if the absolute decision depended on his own house without 
any further inquiry or challenge on the subject. 
- As Congress will ever be composed of men delegated by the several 
States, it may well be supposed that they have the confidence of their 
several States and understand well the policy and present condition 
of them. It may also be supposed that they come with strong local at- 
tachments and habits of thinking limited to the interests of their par- 
ticular States. It may therefore be supposed that they will need much 
information in order to their gaining that enlargement of ideas and great 
comprehension of thought which will be necessary to enable them to 
think properly on that large scale which takes into view the interests 
of all the States. 

The greatest care and wisdom is therefore requisite to give them the 
best and surest information, and of that kind that may be the most 
safely relied on to prevent their being deluded or prejudiced by partial 
representations made by interested men who have particular views. 

This information may perhaps be best made by the great ministers 
of state, who ought to be men of the greatest abilities and integrity. 
Their business is confined to their several departments, and their at- 
tention engaged strongly and constantly to all the several parts of the 
same, the whole arrangement, method and order of which are formed, 
superintended and managed in their offices, and all information re- 
lative to their department centre there. 

These ministers will of course have the best information and most 
perfect knowledge of the state of the nation, as far as it relates to their 
several departments, and will, of course, be able to give the best in- 
formation to Congress in what manner any bill proposed will affect 
the public interest in their several departments which will nearly com- 
prehend the whole. 

The financiers manage the whole subject of revenues and expenditures, 
the Secretary of State takes knowledge of the general policy and in- 
ternal government, the Minister of War presides in the whole business 
of war and defence, and the Minister of Foreign Affairs regards the 
whole state of the nation as it stands related to or connected with all 
foreign powers. 

I mention a Secretary of State because all other nations have one, 
and I suppose we shall need one as much as they, and the multiplicity 
of affairs which naturally fall into his office will grow so fast that I 
imagine we shall soon be under the necessity of appointing one. 



APPENDIX 537 

To these I would add Judges of Law, and Chancery; but I fear they Appendix 
will not be very soon appointed — the one supposes the existence of XI 

law, the other of equity — and when we shall be altogether convinced 
of the absolute necessity of the real and effectual existence of both of 
these we shall probably appoint proper heads to preside in those de- 
partments. I would therefore propose, 

3. That when any bill shall pass the second reading in the house in 
which it originates, and before it shall be finally enacted, copies of it 
shall be sent to each of the said ministers of state, in being at the time, 
who shall give said house in writing the fullest information in their 
power, and their most explicit sentiments of the operation of the said 
bill on the public interest, as far as relates to their respective depart- 
ments, which shall be received and read in said house and entered on 
their minutes before they finally pass the bill ; and when they send the 
bill for concurrence to the other house they shall send therewith the 
said informations of the said ministers of state, which shall likewise 
be read in that house before their concurrence is finally passed. 

I do not mean to give these great ministers of state a negative on 
Congress,' but I mean to oblige Congress to receive their advices before 
they pass their bills, and that every act shall be void that is not passed 
with these forms; and I further propose that either house of Congress 
may, if they please, admit the said ministers to be present and assist 
in the debates of the house, but without any right of vote in the de- 
cision. 

It appears to me that if every act shall pass so many different corps 
of discussion before it is completed, where each of them stake their char- 
acters on the advice or vote they give, there will be all the light thrown 
on the case which the nature and circumstances of it can admit, and 
any corrupt man will find it extremely difficult to foist in any erron- 
eous clause whatever; and every ignorant or lazy man will find the 
strongest inducements to make himself master of the subject that he 
may appear with some tolerable degree of character in it ; and the whole 
will find themselves in a manner compelled, diligently and sincerely, to 
seek for the real state of the facts and the natural fitness and truths 
arising from them, i. e., the whole natural principles on which the sub- 
ject depends, and which alone can endure every test, to the end that 
they may have not only the inward satisfaction of acting properly and 
usefully for the States, but also the credit and character which is or 
ought ever to be annexed to such a conduct. 

This will give the great laws of Congress the highest probability, 
presumption and means of right, fitness and truth that any laws what- 
ever can have at their first enaction, and will of course afford the high- 
est reason for the confidence and acquiescence of the States and all their 
subjects in them, and being grounded in truth and natural fitness, their 
operations will be easy, salutary and satisfactory. 

If experience shall discover error in any law (for practice will cer- 
tainly discover such errors, if there be any), the legislature will always 
be able to correct them by such repeals, amendments, or new laws as 



538 APPENDIX 

Appendix shall be found necessary, but as it is much easier to prevent mischiefs 
XI than to remedy them, all possible caution, prudence and attention 

should be used to make the laws right at first. 

4. There is another body of men among us whose business of life, and 
whose full and extensive intelligence, foreign and domestic, naturally 
make them more perfectly acquainted with the sources of our wealth, 
and whose particular interests are more intimately and necessarily 
connected with the general prosperity of the country than any other 
order of men in the States. I mean the merchants; and I could wish that 
Congress might have the benefit of that extensive and important 
information which this body of men are very capable of laying before 
them. 

Trade is of such essential importance to our interests and so inti- 
mately connected with all our staples, great and small, that no sources 
of our wealth can flourish and operate to the general benefit of the com- 
munity without it. Our husbandry, the great staple of our country, can 
never, exceed our home consumption without this: it is plain at first 
sight that the farmer will not toil and sweat through the year to raise 
great plenty of the produce of the soil if there is no market for his 
produce when he has it ready for sale, i. e., if there are no merchants 
to buy it. 

In like manner the manufacturer will not lay out his business on any 
large scale if there is no merchant to buy his fabrics when he has fin- 
ished them ; a vent is of the most essential importance to every manu- 
facturing country. The merchants, therefore, become the natural ne- 
gotiators of the wealth of the country who take off the abundance 
and supply the wants of the inhabitants ; and as this negotiation is the 
business of their lives and the source of their own wealth they, of course, 
become better acquainted with both our abundance and wants, and are 
more interested in finding and improving the best vent for the one, 
and supply of the other, than any other men among us, and they have 
a natural interest in making both the purchase and supply as convenient 
to their customers as possible, that they may secure their custom and 
thereby increase their own business. 

It follows, then, that the merchants are not only qualified to give 
the fullest and most important information to our supreme legislature 
concerning the state of our trade, the abundance and wants, the wealth 
and poverty of our people, i. e., their most important interests, but are 
also the most likely to do it fairly and truly, and to forward with their 
influence every measure which will operate to the convenience and bene- 
fits of our commerce, and oppose with their whole weight and superior 
knowledge of the subject any wild schemes which an ignorant or arbi- 
trary legislature may attempt to introduce, to the hurt and embar- 
rassment of our intercourse both with one another and with foreigners. 

The States of Venice and Holland have ever been governed by mer- 
chants, or at least their policy has ever been under the great influence 
of that sort of men. No States have been better served, as appears by 
their great success, the ease and happiness of their citizens, as well as 



APPENDIX 539 

the strength and riches of their Commonwealths. The one is the old- Appendix 
est, and the other the richest State in the world of equal number of XI 

people. The one has maintained sundry wars with the Grand Turk, 
the other has withstood the power of Spain and France ; and the capi- 
tals of both have long been the principal marts of the several parts of 
Europe in which they are situated. And the banks of both are the 
best supported and in the best credit of any banks in Europe, though 
their countries or territories are very small and their inhabitants but 
a handful when compared with the great States in their neighbor- 
hood. 

Merchants must from the nature of their business certainly under- 
stand the interests and resources of their country, the best of any men 
in it ; and I know not of any one reason why they should be deemed less 
upright or patriotic than any other rank of citizen whatever. 

I therefore humbly propose, if the merchants in the several States 
are disposed to send delegates from their body to meet and attend the 
sitting of Congress, that they shall be permitted to form a chamber 
of commerce, and their advice to Congress be demanded and admitted 
concerning all bills before Congress as far as the same may affect the 
trade of the States. 

I have no idea that the continent is made for Congress. I take them 
to be no more than the upper servants of the great political body, who 
are to find out things by study and inquiry as other people do, and there- 
fore I think it necessary to place them under the best possible advant- 
ages for information, and to require them to improve all those advant- 
ages, to qualify themselves in the best manner possible for the wise 
and useful discharge of the vast trust and mighty authority reposed 
in them ; and as I conceive the advice of the merchants to be one of the 
greatest sources of mercantile information which is anywhere placed 
within their reach it ought by no means to be neglected, but so hus- 
banded and improved that the greatest possible advantages may be 
derived from it. 

Besides this I have another reason why the merchants ought to be 
consulted. I take it to be very plain that the husbandry and manu- 
factures of the country must be ruined if the present rate of taxes is 
continued on them much longer, and, of course, a very great part of 
our revenue must arise from imposts on merchandise which will fall 
directly within the merchants' sphere of business, and of course, their 
concurrence and advice will be of the utmost consequence, not only to 
direct the properest mode of levying those duties, but also to get them 
carried into quiet and peaceable execution. 

No men are more conversant with the citizens, or more intimately 
connected with their interests than the merchants, and therefore their 
weight and influence will have a mighty effect on the minds of the 
people. I do not recollect an instance in which the Court of London ever 
rejected the remonstrances and advices of the merchants and did not 
suffer severely for their pride. We have some striking instances of this 
in the disregarded advices and remonstrances of very many English 



540 APPENDIX 

Appendix merchants against the American war, and their fears and apprehensions 
XI we see verified almost like prophecies by the event. 

I know not why I should continue this argument any longer, or in- 
deed why I should have urged it so long, inasmuch as I cannot con- 
ceive that Congress or anybody else will deem it below the dignity of 
the supreme power to consult so important an order of men in matters 
of the first consequence which fall immediately under their notice, and 
in which their experience and, of course, their knowledge and advice 
are preferable to those of any other order of men. 

Besides the benefits which Congress may receive from this institu- 
tion, a chamber of commerce composed of members from all trading 
towns in the States, if properly instituted and conducted, will produce 
very many, I might almost say, innumerable advantages of singular 
utility to all the States. It will give dignity, uniformity and safety to 
our trade, establish the credit of the bank, secure the confidence of 
foreign merchants, prove in j,very many instances a fruitful source 
of improvement of our staples and mutual intercourse, correct many 
abuses, pacify discontents, unite us in our interests, and thereby cement 
the general union of the whole Commonwealth, will relieve Congress 
from the pain and trouble of deciding many intricate questions of 
trade w^hich they do not understand by referring them over to this 
chamber, where they will be discussed by an order of men, the most 
competent to the business of any that can be found and most likely to 
give a decision that shall be just, useful and satisfactory. 

It may be objected to all this that the less complex and the more 
simple every constitution is the nearer it comes to perfection. This 
argument would be very good and afford a very forcible conclusion if 
the government of men was like that of the Almighty, always founded 
on wisdom, knowledge and truth; but in tne present imperfect state of 
human nature, where the best of men know but in part and must recur 
to advice and information for the rest, it certainly becomes necessary to 
form a constitution on such principles as will secure that information 
and advice in the best and surest manner possible. 

It may be further objected that the forms herein proposed will em- 
barrass the business of Congress and make it at best slow and dilatory. 
As far as this form will prevent the hurrying a bill through the house 
without due examination the objection itself becomes an advantage. 
At most these checks on the supreme authority can have no further 
effect than to delay or destroy a good bill, but cannot pass a bad one; 
and I think it much better in the main to lose a good bill than to suffer 
a bad one to pass into a law. Besides it is not to be supposed that clear, 
plain cases will meet with embarrassment, and it is most safe that un- 
tried, doubtful, difficult matters should pass through the gravest and 
fullest discussion before the sanction of the law is given to them. 

But what is to be done if the two houses grow jealous and ill-natured, 
and after all their information and advice grow out of humor and insin- 
cere, and no concurrence can be obtained? I answer, sit still and do 
nothing until they get into a better humor. I think this is much better 



APPENDIX 541 

than to pass laws in such a temper and spirit as the objection Appendix 
supposes. XI 

It is, however, an ill compliment to so many grave personages to sup- 
pose them capable of throwing aside their reason and giving themselves 
up like children to the control of their passion; or, if this should happen 
for a moment that it should continue any length of time, is hardly to be 
presumed of a body of men placed in such high stations of dignity and 
importance, with the eyes of all the world upon them. But if they 
should, after all, be capable of doing this, I think it madness to set them 
to making laws during such fits. It is best when they are in no condition 
to do good to keep them from doing hurt, and if they do not grow wiser 
in reasonable time I know of nothing better than to be ashamed of our 
old appointments, and make new ones. 

But what if the country is invaded, or some other exigency happens 
so pressing that the safety of the State requires an immediate resolu- 
tion? I answer, what would you do if such a case should happen where 
there was but one house, unchecked, but equally divided, so that a legal 
vote could not be obtained. The matter is certainly equally difficult and 
embarrassed in both cases. But in the case proposed I know of no better 
way than that which the Romans adopted on the like occasion, viz., 
that both houses meet in one chamber and choose a dictator who should 
have and exercise the whole power of both houses till such time as they 
should be able to concur in displacing him, and that the whole power of 
the two houses should be suspended in the mean time. 

5. I further propose that no grant of money whatever shall be made 
without an appropriation, and that rigid penalties (no matter how great, 
in my opinion the halter would be mild enough) shall be inflicted on any 
person, however august his station, who should give order, or vote for 
the payment, or actually pay one shilling of such money to any other 
purpose than that of its appropriation, and that no order whatever of 
any superior in office shall justify such payment, but every order shall 
express what funds it is drawn upon and what appropriation it is to be 
charged to, or the order shall not be paid. 

This kind of embezzlement is of so fatal a nature that no measures or 
bounds are to be observed in curing it. When ministers will set forth 
the most specious and necessary occasions for money, and induce the 
people to pay it in full tale, and when they have gotten possession of it, 
to neglect the great objects for which it was given, and pay it, sometimes 
squander it away, for different purposes, oftentimes for useless, yea, 
hurtful ones, yea often even to bribe and corrupt the very officers of gov- 
ernment, to betray their trust and contaminate the State even in its 
public offices — to force people to buy their own destruction and pay 
for it with their hard labor, the very sweat of their brow, is a crime of so 
high a nature that I know not any gibbet too cruel for such offenders. 

6. I would further propose that the aforesaid great ministers of state 
shall compose a Council of State, to whose number Congress may add 
three others, viz., one from New England, one from the Middle States 
and one from the Southern States, one of which to be appointed Presid- 



542 APPENDIX 

Appendix ent by Congress, to all of whom shall be committed the supreme execu- 

XI tive authority of the States (all and singular of them ever accountable 

to Congress) who shall superintend all the executive departments and 

appoint all executive officers, who shall ever be accountable to and 

removable for just cause by them or Congress, i. e., either of them. 

7, I propose further that the powers of Congress, and all the other 
departments acting under them, shall all be restricted to such matters 
only of general necessity and utility to all the States as cannot come 
within the jurisdiction of any particular State, or to which the authority 
of any particular State is not competent, so that each particular State 
shall enjoy all sovereignty and supreme authority to all intents and 
purposes, excepting only those high authorities and powers by them 
delegated to Congress for the purposes of the general union. 

There remains one very important article still to be discussed, viz., 
what methods the Constitution shall point out to enforce the acts and 
requisitions of Congress through the several States, and how the States 
which refuse or delay obedience to such acts and requisitions shall be 
treated. This, I know, is a particular of greatest delicacy, as well as of 
the utmost importance, and therefore, I think, ought to be decidedly 
settled by the Constitution in our coolest hours, whilst no passions or 
prejudices exist which may be excited by the great interests or strong 
circumstances of any particular case which may happen. 

I know that supreme authorities are liable to err as well as subordi- 
nate ones. I know that courts may be in the wrong as well as the people; 
such is the imperfect state of human nature in all ranks and degrees of 
men. But we must take human nature as it is — it cannot be mended 
— and we are compelled both by wisdom and necessity to adopt such 
methods as promise the greatest attainable good, though perhaps not 
the greatest possible, and such as are liable to the fewest inconveniences, 
though not altogether free of them. 

This is a question of such magnitude that I think it necessary to 
premise the great natural principles on which its decision ought to de- 
pend. In the present state of human nature all human life is a life of 
chances ; it is impossible to make any interest so certain, but there will 
be a chance against it, and we are in all cases obliged to adopt a chance 
against us in order to bring ourselves within the benefit of a greater 
chance in our favor; and that calculation of chances which is grounded 
on the great natural principles of truth and fitness is of all others the 
most likely to come out right. 

1. No laws of any State whatever, which do not carry in them a force 
which extends to their effectual and final execution, can afford a certain 
or sufficient security to the subject. This is too plain to need any 
proof. 

2. Laws or ordinances of any kind (especially of august bodies of high 
dignity and consequence), which fail of execution, are much worse than 
none. They weaken the government, expose it to contempt, destroy 
the confidence of all men, natives and foreigners, in it, and expose both 
aggregate bodies and individuals who have placed confidence in it to 



APPENDIX 543 

many ruinous disappointments which they would have escaped had no Appendix 
law or ordinance been made; therefore, XI 

3. To appoint a Congress with powers to do all acts necessary for the 
support and uses of the union; and at the same time to leave all the 
States at liberty to obey them or not with impunity, is, in every view, 
the grossest absurdity, worse than a state of nature without any supreme 
authority at all, and at best a ridiculous effort of childish nonsense; and 
of course, 

4. Every State in the Union is under the highest obligation to obey 
the supreme authority of the whole, and in the highest degree amenable 
to it, and subject to the highest censure for disobedience. Yet all this 
notwithstanding, I think the soul that sins shall die, i. e., the censure of 
the great supreme power ought to be so directed if possible as to light 
on those persons who have betrayed their country and exposed it to 
dissolution, by opposing and rejecting that supreme authority which is 
the band of our union and from whence proceeds the principal strength 
and energy of our government. 

I therefore propose that every person whatever, whether in public 
or private character, who shall by public vote or overt act disobey the 
supreme authority, shall be amenable to Congress, shall be summoned 
and compelled to appear before Congress and, on due conviction, suffer 
such fine, imprisonment, or other punishment as the supreme authority 
shall judge requisite. 

It may be objected here that this will make a Member of Assembly 
accountable to Congress for his vote in Assembly. I answer, it does so 
in this only case, viz., when that vote is to disobey the supreme author- 
ity; no Member of Assembly can have right to give such a vote, and 
therefore ought to be punished for so doing. When the supreme author- 
ity is disobeyed the government must lose its energy and effect, and of 
course the Empire must be shaken to its very foundation. 

A government which is but half executed, or whose operations may 
all be stopped by a single vote, is the most dangerous of all institutions. 
See the present Poland and ancient Greece buried in ruins in conse- 
quence of this fatal error in their policy. A government which has not 
energy and effect can never afford protection or security to its subjects, 
i. e., must ever be ineffectual to its own ends. 

I cannot therefore admit that the great ends of our Union should lie 
at the mercy of a single State, or that the energy of our government 
should be checked by a single disobedience, or that such disobedience 
should ever be sheltered from censure and punishment ; the consequence 
is too capital, too fatal to be admitted. Even though I know very well 
that a supreme authority with all its dignity and importance is subject 
to passions like other lesser powers, that they may be and often are 
heated, violent, oppressive and very tyrannical, yet I know also that 
perfection is not to be hoped for in this life, and we must take all insti- 
tutions with their natural defects or reject them altogether. I will guard 
against these abuses of power as far as possible, but I cannot give up all 
government or destroy its necessary energy for fear of these abuses. 



544 APPENDIX 

Appendix But to fence them out as far as possible, and to give the States as 
XI great a check on the supreme authority as can consist with its necessary 

energy and effect, 

I propose that any State may petition Congress to repeal any law or 
decision which they have made, and if more than half the States do this, 
the law or decision shall be repealed, let its nature or importance be 
however great, excepting only such acts as create funds for the public 
credit, which shall never be repealed till their end is effected, or other 
funds equally effectual are substituted in their place; but Congress shall 
not be obliged to repeal any of these acts so petitioned against till they 
have time to lay the reasons of such acts before such petitioning States 
and to receive their answer; because such petitions may arise from sud- 
den heats, popular prejudices, or the publication of matters false in fact, 
and may require time and means of cool reflection and the fullest in- 
formation before the final decision is made. But if after all more than 
half of the States persist in their demand of a repeal, it shall take place. 

The reason is, the uneasiness of a majority of States affords a strong 
presumption that the act is wrong, for uneasiness arises much more 
frequently from wrong than right. But if the act was good and right it 
would still be better to repeal and lose it than to force the execution of 
it against the opinion of a major part of the States; and lastly, if every 
act of Congress is subject to this repeal. Congress itself will have 
stronger inducement not only to examine well the several acts under 
their consideration, but also to communicate the reasons of them to the 
States than they would have if their simple vote gave the final stamp 
of irrevocable authority to their acts. 

Further, I propose that if the execution of any act or order of the 
supreme authority shall be opposed by force in any of the States (which, 
God forbid) it shall be lawful for Congress to send into such State a 
sufficient force to suppress it. 

On the whole, I take it that the very existence and use of our Union 
essentially depends on the full energy and final effect of the laws made 
to support it, and therefore I sacrifice all other considerations to this 
energy and effect, and if our Union is not worth this purchase we must 
give it up — the nature of the thing does not admit of any other alter- 
native. 

I do contend that our Union is worth this purchase. With it every 
individual rests secure under its protection against foreign or domestic 
insult and oppression; without it we can have no security against the 
oppression, insult, and invasion of foreign powers ; for no single State 
is of importance enough to be an object of treaty with them, nor if it 
was, could it bear the expense of such treaties or support any character 
or respect in a dissevered State, but must lose all respectability among 
the nations abroad. 

We have a very extensive trade which cannot be carried on with 
security and advantage without treaties of commerce and alliance 
with foreign nations. 
. We have an extensive western territory which cannot otherwise be 



APPENDIX 545 

defended against the Invasion of foreign nations bordering on our Appendix 
frontiers, who will cover it with their own inhabitants, and we shall lose XI 

it forever and our extent of empire be thereby restrained ; and what is 
worse, their numerous posterity will in future time drive ours into the 
sea, as the Goths and Vandals formerly conquered the Romans in like 
circumstances, unless we have the force of the Union to repel such in- 
vasions. We have, without the Union, no security againt the inroads 
and wars of one State upon another, by which our wealth and strength 
as well as our ease and comfort will be devoured by enemies growing 
out of our own bowels. 

I conclude then that our Union is not only one of the most essential 
consequence to the well-being of the States in general, but to that of 
every individual citizen of them, and, of course, ought to be supported 
and made as useful and safe as possible by a Constitution which admits 
that full energy and final effect of government which alone can secure 
its great ends and uses. 

In a dissertation of this sort I would not wish to descend to minutiae, 
yet there are some small matters which have important consequences 
and therefore ought to be noticed. It is necessary that Congress should 
have all usual and necessary powers of self-preservation and order, e. g., 
to imprison for contempt, insult or interruption, etc., and to expel 
their own members for due causes, among which I would rank that of 
non-attendance on the house, or partial attendance without such excuse 
as shall satisfy the house. 

Where there is such vast authority and trust devolved on Congress 
and the grand and most important interests of the Empire rest on their 
decisions, it appears to me highly unreasonable that we should suffer 
their august consultations to be suspended, or their dignity, authority 
and influence lessened by the idleness, neglect and non-attendance of 
its members ; for we know that the acts of a thin house do not usually 
carry with them the same degree of weight and respect as those of a 
full house. 

Besides, I think when a man is deputed a delegate in Congress and 
has undertaken the business, the whole Empire becomes, of course, 
possessed of a right to his best and constant services, which if any mem- 
ber refuses or neglects, the Empire is injured and ought to resent the 
injury, at least so far as to expel and send him home, so that his place 
may be better supplied. 

I have one argument in favor of my whole plan, viz. : it is so formed 
that no men of dull intellects or small knowledge, or of habits too idle 
for constant attendance, or close and steady attention, can do the 
business with any tolerable degree of respectability, nor can they find 
either honor, profit or satisfaction in being there, and, of course, I could 
wish that the choice of the electors might never fall on such a man, 
or if it should, that he might have sense enough (of pain at least, if not 
of shame) to decline his acceptance. 

For after all that can be done I do not think that a good adminis- 
tration depends wholly on a good Constitution and good laws, for in- 



546 APPENDIX 

Appendix sufficient or bad men will always make bad work and a bad adminis- 
XI tration, let the Constitution and laws be ever so good. The manage- 

ment of able, faithful and upright men alone can cause an administra- 
tion to brighten, and the dignity and wisdom of an Empire to rise into 
respect; make truth the line and measure of public decision; give weight 
and authority to the government, and security and peace to the subject. 

We now hope that we are on the close of a war of mighty effort and 
great distress against the greatest power on earth, whetted into the 
most keen resentment and savage fierceness which can be excited by 
wounded pride, and which usually rises higher between brother and 
brother offended than between strangers in contest. Twelve of the 
Thirteen United States have felt the actual and cruel invasions of the 
enemy, and eleven of our capitals have been under their power, first 
or last, during the dreadful conflict, but a good Providence, our own 
virtue and firmness, and the help of our friends have enabled us to rise 
superior to all the powers of our adversaries and make them seek to be 
at peace with us. 

During the extreme pressures of the war indeed many errors in our 
administration have been committed when we could not have experi- 
ence and time for reflection to make us wise, but these will easily be 
excused, forgiven and forgotten if we can now, while at leisure, find 
virtue, wisdom, and foresight enough to correct them and form such 
establishments as shall secure the great ends of our Union and give 
dignity, force, utility and permanency to our Empire. 

It is a pity we should lose the honor and blessings which have cost 
us so dear for want of wisdom and firmness in measures which are 
essential to our preservation. It is now at our option either to fall back 
into our original atoms or form such an union as shall command the 
respect of the world and give honor and security to our people. 

This vast subject lies with mighty weight on my mind, and I have 
bestowed on it my utmost attention and here offer the public the best 
thoughts and sentiments I am master of. I have confined myself in 
this dissertation entirely to the nature, reason and truth of my subject 
without once adverting to the reception it might meet with from men 
of different prejudices or interests. To find the truth, not to carry a 
point, has been my object. 

I have not the vanity to imagine that my sentiments may be adopted ; 
I shall have all the reward I wish or expect if my dissertation shall 
throw any light on the great subject, shall excite an emulation of in- 
quiry and animate some abler genius to form a plan of greater perfec- 
tion, less objectionable and more useful. 

Philadelphia, February i6, 1783. 



APPENDIX 547 

notes: appended by pelatiah webster to the republi- 
cation MADE AT PHILADELPHIA IN 1 79 1 

NOTE I 

Forming a plan of confederation or a system of general government Appendix 
of the United States engrossed the attention of Congress from the XI 

Declaration of Independence, July 4, 1776, till the same was completed 
by Congress, July 9, 1778, and recommended to the several States for 
ratification, which finally took place March i, 1781, from which time 
the said confederation was considered as the grand constitution of the 
general government, and the whole administration was conformed to it. 

And as it had stood the test of discussion in Congress for two years 
before they completed and adopted it, and in all the States for three 
years more before it was finally ratified, one would have thought that 
it must have been a very finished and perfect plan of government. 

But on trial of it in practice it was found to be extremely weak, 
defective, totally inefhcient, and altogether inadequate to its great 
ends and purposes, for 

1. It blended the legislative and executive powers together in one 
body. 

2. This body, viz. : Congress, consisted of but one house, without any 
check upon their resolutions. 

3. The powers of Congress in very few instances were definitive and 
final; in the most important articles of government they could do no 
more than recommend to the several States, the consent of every one 
of which was necessary to give legal sanction to any act so recommended. 

4. They could assess and levy no taxes. 

5. They could institute and execute no punishments except in the 
military department. 

6. They had no power of deciding or controlling the contentions and 
disputes of different States with each other. 

7. They could not regulate the general trade; or, 

8. Even make laws to secure either public treaties with foreign States, 
or the persons of public ambassadors, or to punish violations or inju- 
ries done to either of them. 

9. They could institute no general judiciary powers. 

10. They could regulate no public roads, canals, or inland navigation, 
etc., etc., etc. 

And what caps all the rest was that (whilst under such an ineffi- 
cient political constitution the only chance we had of any tolerable 
administration lay wholly in'the prudence and wisdom of the men who 
happened to take the lead in our public councils) it was fatally pro- 
vided by the absurd doctrine of rotation that if any member of Congress 
by three years' experience and application had qualified himself to 
manage our public affairs with consistency and fitness, that he should 
be constitutionally and absolutely rendered incapable of serving any 



548 'appendix 

Ai'iMCNDix longer till by three years' discontinuance he had pretty well lost the 
XI cue or train of the public counsels and forgot the ideas and plans which 

made his service useful and important and, in the mean time, his place 
should be supplied by a fresh man, who had the whole matter to learn, 
and when he had learned it was to give [)lace to another fresh man, and 
so on to the end of the chapter. 

The sensible mind of the United States by long experience of the 
fatal mischief of anarchy, or (which is about the same thing) of this 
ridiculous inefficient form of government, began to apprehend that 
there was something wrong in our [)olicy which ought to be redressed 
and mended, but nobody undertook to delineate the necessary amend- 
ments. 

I was then pretty much at leisure, and was fully of opinion (though 
the sentiment at that time would not very well bear) that it would be 
ten times easier to form a new constitution than to mend the old one. 
I therefore sat myself down to sketch out the leading principles of that 
political constitution which I thought necessary to the preservation 
and happiness of the United States of America, which are comprised 
in this Dissertation. 

I hope the reader will please consider that these are the original 
thoughts of a private individual, dictated by the nature of the subject 
only, long before the important theme became the great object of dis- 
cussion in the most dignified and important assembly which ever sat 
.or decided in America. 

NOTE 2 

At the time when this Dissertation was written (Feb. i6, 1783) the 
defects and insufficiency of the Old Federal Constitution were uni- 
versally felt and acknowledged. It was manifest, not only that the 
internal police, justice, vsecurity and peace of the States could never be 
preserved under it, but the finances and public credit would necessarily 
become so embarrassed, precarious and void of support that no public 
movement which depended on the revenue could be managed with any 
effectual certainty; but though the public mind was under full convic- 
tion of all these mischiefs and was contemplating a remedy, yet the 
public ideas were not at all concentrated, much less arranged into any 
new system or form of government which would obviate these evils. 
Under these circumstances I offered this Dissertation to the public. 
How far the principles of it were adopted or rejected in the New Con- 
stitution, which was four years afterwards (Sept. 17, 1787) formed by 
the General Convention and since ratified by all the States, is obvious to 
every one. 

I wish here to remark the great particulars of my plan which were 
rejected by the Convention. 

1. My plan was to keep the legislative and executive departments 
entirely distinct; the one to consist of the two houses of Congress, the 
other to rest entirely in the Grand Council of State. 

2. I proposed to introduce a Chamber of Commerce, to consist of 



APPENDIX 549 

merchants who should be consulted by the legislature in all matters of Appendix 
trade and revenue, and which should have the conducting the revenue XI 

committed to them. 

The first of these the Convention qualified; the second they say 
nothing of, i. e., take no notice of it. 

3. I proposed that the great oflficers of state should have the perusal 
of all bills before they were enacted into laws, and should be required 
to give their opinion of them as far as they affected the public interest 
in their several departments, which report of them Congress should cause 
to be read in their respective houses and entered on their minutes. This 
is passed over without notice. 

4. I proposed that all public officers appointed by the executive au- 
thority should be amenable both to them and to the legislative power, 
and removable for just cause by either of them. This is qualified by 
the Convention. 

And inasmuch as my sentiments in these respects were either quali- 
fied or totally neglected by the Convention, I suppose they were wrong. 
However, the whole matter is submitted to the politicians of the present 
age and to our p)osterity in future. 

In sundry other things the Convention have gone into minutia?, e. g., 
respecting elections of presidents, senators, and representatives in 
Congress, etc., which I proposed to leave at large to the wisdom and 
discretion of Congress and of the several States. 

Great reasons may doubtless be assigned for their decision, and 
perhaps some little ones for mine. Time, the great arbiter of all human 
plans may, after a while, give his decision ; but neither the Convention 
nor myself will probably live to feel either the exultation or mortifica- 
tion of his approbation or disapprobation of either of our plans. 

But if any of these questions should in future time become objects 
of discussion, neither the vast dignity of the Convention, nor the low, 
unnoticed state of myself, will be at all considered in the debates; the 
merits of the matter and the interests connected with or arising out of 
it will cilone dictate the decision. 



XII 
THE VIRGINIA PLAN 

PRESENTED TO THE FEDERAL CONVENTION, MAY 29, I787, BY 
EDMUND RANDOLPH, FROM THE TEXT AS PRINTED IN THE 
MADISON PAPERS, II, 731-735, WITH THE THREE LETTERS OF 
MADISON OF MARCH AND APRIL 1 787, CONTAINING THE ONLY 
SKETCH HE SAYS HE EVER MADE OF A CONSTITUTION 

Appendix i- Resolved, that the Articles of Confederation ought to be so cor- 
XII rected and enlarged as to accomplish the objects proposed by their 

institution; namely, common defence, security of liberty, and general 
welfare. 

2. Resolved, therefore, that the rights of suffrage in the National 
Legislature ought to be proportioned to the quotas of contribution, or 
to the number of free inhabitants, as the one or the other rule may seem 
best in different cases. 

3. Resolved, that the National Legislature ought to consist of two 
branches. 

4. Resolved, that the members of the first branch of the National 
Legislature ought to be elected by the people of the several States every 

for the term of ; to be of the age of years at least; 

to receive liberal stipends by which they may be compensated for the 
devotion of their time to the public service; to be ineligible to any office 
established by a particular State, or under the authority of the United 
States, except those peculiarly belong to the functions of the first 

branch, during the term of service, and for the space of after its 

expiration; to be incapable of re-election for the space of after 

the expiration of their term of service, and to be subject to recall. 

5. Resolved, that the members of the second branch of the National 
Legislature ought to be elected by those of the first, out of a proper 
number of persons nominated by the individual Legislatures, to be of 

the age of years at least; to hold their offices for a term sufficient 

to ensure their independency; to receive liberal stipends, by which they 
may be compensated for the devotion of their time to the public service; 
and to be ineligible to any office established by a particular State, or 
under the authority of the United States, except those peculiarly be- 
longing to the functions of the second branch, during the term of serv- 
ice; and for the space of after the expiration thereof. 

6. Resolved, that each branch ought to possess the right of originating 
acts; that the National Legislature ought to be empowered to enjoy 
the legislative rights vested in Congress by the Confederation, and 
moreover to legislate in all cases to which the separate States are in- 



APPENDIX 551 

competent, or in which the harmony of the United States may be inter- Appendix 
rupted by the exercise of individual legislation; to negative all laws XII 

passed by the several States contravening, in the opinion of the Na- 
tional Legislature, the Articles of Union, or any treaty subsisting 
under the authority of the Union; and to call forth the force of the 
Union against any member of the Union failing to fulfil its duty under 
the Articles thereof. 

7. Resolved, that a National Executive be instituted; to be chosen by 

the National Legislature for the term of ; to receive punctually, 

at stated times, a fixed compensation for the services rendered, in which 
no increase nor diminution shall be made, so as to affect the magistracy 
existing at the time of increase or diminution; and to be ineligible a 
second time; and that, besides a general authority to execute the na- 
tional laws, it ought to enjoy the executive rights vested in Congress 
by the Confederation. 

8. Resolved, that the Executive, and a convenient number of the 
national Judiciary, ought to compose a Council of Revision, with 
authority to examine every act of the National Legislature, before it 
shall operate, and every act of a particular Legislature before a nega- 
tive thereon shall be final ; and that the dissent of the said Council shall 
amount to a rejection, unless the act of the National Legislature be 
again passed, or that of a particular Legislature be again negatived by 
of the members of each branch. 

9. Resolved, that a National Judiciary be established; to consist of 
one or more supreme tribunals, and of inferior tribunals to be chosen by 
the National Legislature; to hold their offices during good behaviour, 
and to receive punctually, at stated times, fixed compensation for their 
services, in which no increase or diminution shall be made, so as to affect 
the persons actually in office at the time of such increase or diminution. 
That the jurisdiction of the inferior tribunals shall be to hear and deter- 
mine, in the first instance, and of the supreme tribunal to hear and 
determine, inthe dernier ressort, all piracies and felonies on the high seas; 
captures from an enemy; cases in which foreigners, or citizens of other 
States, applying to such jurisdictions, may be interested; or which 
respect the collection of the national revenue; impeachments of any 
national officers, and questions which may involve the national peace 
and harmony. 

10. Resolved, that provision ought to be made for the admission of 
States lawfully arising within the limits of the United States, whether 
from a voluntary junction of government and territory, or otherwise, 
with the consent of a number of voices in the National Legislature less 
than the whole. 

11. Resolved, that a republican government, and the territory of each 
State, except in the instance of a voluntary junction of government and 
territory, ought to be guaranteed by the United States to each State. 

12. Resolved, that provision ought to be made for the continuance of 
Congress and their authorities and privileges, until a given day after 
the reform of the Articles of Union shall be adopted, and for the com- 
pletion of all their engagements. 



552 APPENDIX 

Appendix 13. Resolved, that provision ought to be made for the amendment of 
XII the Articles of Union, whensoever it shall seem necessary; and that the 

assent of the National Legislature ought not to be required thereto. 

14. Resolved, that the legislative, executive, and judiciary powers, 
within the several States ought to be bound by oath to support the 
Articles of Union. 

15. Resolved, that the amendments which shall be offered to the Con- 
federation, by the Convention ought, at a proper time or times, after 
the approbation of Congress, to be submitted to an assembly or assem- 
blies of representatives, recommended by the several Legislatures to 
be expressly chosen by the people to consider and decide thereon. . . . 
It was then resolved, that the House will to-morrow resolve itself into a 
Committee of the Whole House, to consider of the state of the American 
Union ; and that the propositions moved by Mr. Randolph be referred to 
said Committee. 

B 

THE PERSONAL CLAIM OF MADISON 

In the "Introduction to the Debates in the Convention" ^ occurs 
the following: "As a sketch on paper, the earliest, perhaps, of a Con- 
stitutional Government for the Union (organized into regular depart- 
ments, with physical means operating on individuals) to be sanctioned 
by the people of the States, acting in their original and sovereign char- 
acter, was contained in the letters of James Madison to Thomas Jeffer- 
son of the nineteenth of March ; to Governor Randolph of the eighth of 
April; and to General Washington of the sixteenth of April, 1787, for 
which see their respective dates." Thus it appears that the earliest 
sketch of a constitution Madison claims to have made is embodied in 
these three letters, printed below, written in March and April, 1787, 
— more than four years after the publication at Philadelphia on 
February i6th, 1783 (at a time when Madison was actually present 
in that city as a member of the Continental Congress), of Pelatiah 
Webster's epoch-making paper of that date. 

MADISON TO JEFFERSON 

New York, March 19, 1787. 

Dear Sir, Congress have continued so thin as to be incompetent to 
the dispatch of the more important business before them. We have at 
present nine states, and it is not improbable that something may now be 
done. The report of Mr. Jay on the mutual violations of the treaty of 
peace will be among the first subjects of deliberation. He favors the 
British claim of interest, but refers the question to the court. The 
amount of the report, which is an able one, is, that the treaty should be 
put in force as a law, and the exposition of it left, like that of other laws, 
to the ordinary tribunals. 

^ The Madison Papers, ii, 714. 



APPENDIX 553 

The Spanish project sleeps. A perusal of the attempt of seven states Appendix 
to make a new treaty, by repealing an essential condition of the old, XII 

satisfied me that Jay's caution would revolt at so irregular a sanction. 
A late accidental conversation with Guardoqui proved to me that the 
negotiation is arrested. It may appear strange that a member of Con- 
gress should be indebted to a foreign Minister for such information, 
yet such is the footing on which the intemperance of party has put the 
matter, that it rests wholly with Mr. Jay how far he will communicate 
with Congress, as well as how far he will negotiate with Guardoqui. 
But although it appears that the intended sacrifice of the Mississippi 
will not be made, the consequences of the intention and the attempt 
are likely to be very serious. I have already made known to you the 
light in which the subject was taken up by Virginia. Mr. Henry's dis- 
gust exceeds all measure, and I am not singular in ascribing his 
refusal to attend the Convention to the policy of keeping himself free 
to combat or espouse the result of it according to the result of the 
Mississippi business, among other circumstances. North Carolina also 
has given pointed instructions to her Delegates; so has New Jersey. 
A proposition for the like purpose was a few days ago made in the Leg- 
islature of Pennsylvania, but went off without a decision on its merits. 
Her Delegates in Congress are equally divided on the subject. The 
tendency of this project to foment distrust among the Atlantic States, 
at a crisis when harmony and confidence ought to have been studi- 
ously cherished, has not been more verified than its predicted effect on 
the ultramontane settlements. I have credible information that the 
people living on the Western waters are already in great agitation, and 
are taking measures for uniting their consultations. The ambition of 
individuals will quickly mix itself with the original motives of resent- 
ment and interest. Communication will gradually take place with their 
British neighbors. They will be led to set up for themselves, to seize on 
the vacant lands, to entice emigrants by bounties and an exemption from 
Federal burthens, and in all respects play the part of Vermont on a 
large theatre. It is hinted to me that British partizans are already feel- 
ing the pulse of some of the Western settlements. Should these appre- 
hensions not be imaginary, Spain may have equal reason with the 
United States to rue the unnatural attempt to shut the Mississippi. 
Guardoqui has been admonished of the danger, and, I believe, is not 
insensible to it, though he affects to be otherwise, and talks as if the 
dependence of Britain on the commercial favors of his Court would 
induce her to play into the hands of Spain. The eye of France also can- 
not fail to watch over the western prospects. I learn from those who 
confer here with Otto and De la Forest, that they favor the opening 
of the Mississippi, disclaiming at the same time any authority to speak 
the sentiments of their Court. I find that the Virginia Delegates, during 
the Mississippi discussions last fall, entered into very confidential inter- 
views with these gentlemen. In one of them the idea was communi- 
cated to Otto of opening the Mississippi for exports but not for imports, 
and of giving to France and Spain some exclusive privileges in the trade. 



554 



APPENDIX 



Appendix He promised to transmit it to Vergennes, to obtain his sentiments on 
XII the whole matter, and to communicate them to the Delegates. Not long 

since Grayson called on him, and revived the subject. He assured 
Grayson that he had received no answer from France, and signified his 
wish that you might pump the Count de Vergennes, observing that 
he would deny to you his having received any information from America. 
I discover, through several channels, that it would be very grateful to 
the French politicians here to see our negotiations with Spain shifted into 
your hands and carried on under the mediating auspices of their Court. 

Van Berkel has remonstrated against the late acts of Virginia, giving 
privileges to French wines and brandies in French bottoms, contending 
that the Dutch are entitled by their treaty to equal exemptions with the 
most favored nation, without being subject to a compensation for them. 
Mr. Jay has reported against this construction, but considers the act of 
Virginia as violating the treaty; — first, as it appears to be gratuitous, 
not compensatory, on the face of it; secondly, because the States have 
no right to form tacit compacts with foreign nations. No decision of 
Congress has yet taken place on the subject. 

The expedition of General Lincoln against the insurgents has effectu- 
ally succeeded in dispersing them. Whether the calm which he has 
restored will be durable or not, is uncertain. From the precautions 
taken by the Government of Massachusetts, it would seem as if their 
apprehensions were not extinguished. Besides disarming and disfranchis- 
ing, for a limited time, those who have been in arms, as a condition of their 
pardon, a military corps is to be raised to the amount of one thousand 
or fifteen hundred Men, and to be stationed in the most suspected dis- 
tricts. It is said that notA\athstanding these specimens of the temper 
of the Government, a great proportion of the offenders choose rather to 
risk the consequences of their treason, than submit to the conditions 
annexed to the amnesty; that they not only appear openly on public 
occasions, but distinguish themselves by badges of their character; and 
that this insolence is in many instances countenanced by no less decisive 
marks of popular favor than elections to local offices of trust and 
authority. 

A proposition is before the Legislature of this State, now sitting, for 
renouncing its pretensions to Vermont, and urging the admission of it 
into the Confederacy. The different parties are not agreed as to the 
form in which the renunciation should be made, but are likely to agree 
as to the substance. Should the offer be made, and should Vermont not 
reject it altogether, I think they will insist on two stipulations at least; 
— first, that their becoming parties to the Confederation shall not sub- 
ject their boundaries, or the rights of their citizens, to be questioned 
under the ninth Article; secondly, that they shall not be subject to any 
part of the public debts already contracted. 

The Geographer and his assistants have returned surveys on the 
Federal lands to the amount of about eight hundred thousand acres, 
which it is supposed would sell pretty readily for public securities, and 
some of it, lying on the Ohio, even for specie. It will be difficult, how- 



APPENDIX '555 

ever, to get proper steps taken by Congress, so many of the States hav- Appendix 
ing lands of their own at market. It is supposed that this consideration XII 

had some share in the zeal for shutting the Mississippi. New Jersey, and 
some others having no Western lands, which favored this measure, 
begin now to penetrate the secret. A letter from the Governor of Vir- 
ginia informs me, that the project of paper-money is beginning to 
recover from the blow given it at the last session of the Legislature. If 
Mr. Henry espouses it, of which there is little doubt, I think an emission 
will take place. 

MADISON TO RANDOLPH 

New York, April 8, 1787. 
Dear Sir, 

Your two favors of the twenty-second and twenty-seventh of March, 
have been received since my last. In a preceding one you ask, what 
tribunal is to take cognizance of Clark's offence? If our own laws will 
not reach it, I see no possibility of punishing it. But will it not come 
within the act of the last session concerning treasons and other offences 
committed without the commonwealth? I have had no opportunity 
yet of consulting Mr. Otto on the allegation of Osier touching the mar- 
riage of French subjects in America. What is the conspicuous prosecu- 
tion which you suspect will shortly display a notable instance of perjury? 

I am glad to find that you are turning your thoughts towards the 
business of May next. My despair of your finding the necessary leisure 
as signified in one of your letters, with the probability that some lead- 
ing propositions at least would be expected from Virginia had engaged 
me in a closer attention to the subject than I should otherwise have 
given. I will just hint the ideas that have occurred, leaving explanations 
for interview. 

I think with you, that it will be well to retain as much as possible of 
the old Confederation, though I doubt whether it may not be best to 
work the valuable articles into the new system, instead of engrafting 
the latter on the former. I am also perfectly of your opinion, that, in 
framing a system, no material sacrifices ought to be made to local or 
temporary prejudices. An explanatory address must of necessity ac- 
company the result of the Convention on the main object. I am not 
sure that it will be .practicable to present the several parts of the re- 
form in so detached a manner to the States, as that a partial adoption 
will be binding. Particular States may view different articles as con- 
ditions of each other, and would only ratify them as such. Others might 
ratify them as independent propositions. The consequence would be 
that the ratifications of both would go for nothing. I have not, how- 
ever, examined this point thoroughly. In truth, my ideas of a reform 
strike so deeply at the old Confederation, and lead to such a system- 
atic change, that they scarcely admit of the expedient. 

I hold it for a fundamental point, that an individual independence of 
the States is utterly irreconcilable with, the idea of an aggregate sover- 
eignty. I think, at the same time, that a consolidation of the States 



556 APPENDIX 

Appendix into one simple republic is not less unattainable than it would be in- 

XII expedient. Let it be tried, then, whether any middle ground can be 

taken, which will at once support a due supremacy of the national 

authority, and leave in force the local authorities so far as they can be 

subordinately useful. 

The first step to be taken is, I think, a change in the principle of 
representation. According to the present form of the Union an equality 
of suffrage, if not just towards the larger members of it, is at least safe 
to them, as the liberty they exercise of rejecting or executing the acts 
of Congress, is uncontrollable by the nominal sovereignty of Congress. 
Under a system which would operate without the intervention of the 
States, the case would be materially altered, A vote from Delaware 
would have the same effect as one from Massachusetts or Virginia. 

Let the National Government be armed with a positive and complete 
authority in all cases where uniform measures are necessary, as in 
trade, etc., etc. Let it also retain the powers which it now possesses. 

Let it have a negative, in all cases whatsoever, on the Legislative 
acts of the States, as the King of Great Britain heretofore had. This I 
conceive to be essential and the least possible abridgement of the State 
sovereignties. Without such a defensive power, every positive power 
that can be given on paper will be unavailing. It will also give internal 
stability to the States. There has been no moment since the peace 
at which the Federal assent would have been given to paper money — 
etc., etc. 

Let this national supremacy be extended also to the Judiciary de- 
partment. If the Judges in the last resort depend on the States, and 
are bound by their oaths to them, and not to the Union, the intention 
of the law and the interests of the nation may be defeated by the ob- 
sequiousness of the tribunals to the policy or prejudices of the States. 
It seems at least essential that an appeal should lie to some national 
tribunals in all cases which concern foreigners or inhabitants of other 
States. The admiralty jurisdiction may be fully submitted to the 
National Government. 

A Government formed of such extensive powers ought to be well or- 
ganized. The Legislative department may be divided into two branches. 

One of them to be chosen every years by the Legislatures or the 

people at large; the other to consist of a more select number, holding 
their appointments for a longer term, and going out in rotation. Per- 
haps the negative on the State laws may be most conveniently lodged 
in this branch. A council of Revision may be superadded, including 
the great ministerial officers. f 

A national Executive will also be necessary. I have scarcely ventured 
to form my own opinion yet, either of the manner in which it ought to 
be constituted, or of the authorities with which it ought to be clothed. 

An article ought to be inserted expressly guaranteeing the tranquil- 
ity of the States against internal as well as external dangers. 

To give the new system its proper energy, it will be desirable to have 
it ratified by the authority of the people, and not merely by that of the 
Legislatures. 



APPENDIX 557 

I am afraid you will think this project if not extravagant, absolutely Appendix 
unattainable and unworthy of being attempted. Conceiving it my- XII 

self to go no further than is essential, the objections drawn from this 
source are to be laid aside. I flatter myself, however, that they may 
be less formidable on trial than in contemplation. The change in the 
principle of representation will be relished by a majority of the States, 
and those too of most influence. The Northern States will be recon- 
ciled to it by the actual superiority of their populousness ; the South- 
em by their expected superiority on this point. This principle estab- 
lished, the repugnance of the large States to part with power will in 
a great degree subside, and the smaller States must ultimately yield 
to the predominant will. It is also already seen by many, and must by 
degrees be seen by all, that, unless the Union be organized efficiently on 
republican principles, innovations of a much more objectionable form 
may be obtruded; or, in the most favorable event, the partition of 
the Empire, into rival and hostile confederacies will ensue. 

MADISON TO WASHINGTON 

New York, i6 April 1787 
Dear Sir, 

I have been honored with your letter of the 31st of March, 
and find with much pleasure, that your views of the reform, which ought 
to be pursued by the convention, give a sanction to those which I have 
entertained. Temporizing applications will dishonor the councils, 
which propose them, and may foment the internal malignity of the 
disease, at the same time that they produce an ostensible palliation of 
it. Radical attempts, although unsuccessful, will at least justify the 
authors of them. 

Having been lately led to revolve the subject, which is to undergo 
the discussion of the convention, and formed in my mind some outlines 
of a new system, I take the liberty of submitting them without apology 
to your eye. Conceiving that an individual independence of the States 
is totally irreconcilable with their aggregate sovereignty, and that a 
consolidation of the whole into one simple republic would be as inex- 
pedient as it is unattainable, I have sought for some middle ground, 
which may at once support a due supremacy of the national authority, 
and not exclude the local authorities wherever they can be subordin- 
ately useful. 

I would propose as the ground-work, that a change be made in the 
principle of representation. According to the present form of the Union, 
in which the intervention of the States is in all great cases necessary 
to effectuate the measures of Congress, an equality of suffrage does 
not destroy the inequality of importance in the several members. No 
one will deny, that Virginia and Massachusetts have more weight and 
influence, both within and without Congress, than Delaware or Rhode 
Island. Under a system, which would operate in many essential 
points without the intervention of the State legislatures, the case would 



558 APPENDIX 

Appendix be materially altered. A vote in the national councils from Delaware 
XII would then have the same effect and value, as one from the largest 

State in the Union. I am ready to believe, that such a change will 
not be attended with much difficulty, a majority of the States, and those 
of the greatest influence, will regard it as favorable to them. To the 
Northern States it will be recommended by their present populousness; 
to the Southern, by their expected advantage in this respect. The lesser 
States must in every event yield to the predominant will. But the con- 
sideration, which particularly urges a change in the representation, 
is, that it will obviate the principal objections of the larger States to 
the necessary concessions of power. 

I would propose next, that, in addition to the present federal powers, 
the national government should be armed with positive and complete 
authority in all cases, which require uniformity; such as the regulation 
of trade, including the right of taxing both exports and imports, the 
fixing of the terms and forms of naturalization, etc. 

Over and above this positive power, a negative in all cases whatso- 
ever on the legislative acts of the States, as heretofore exercised by the 
kingly prerogative, appears to me to be absolutely necessary, and to be 
the least possible encroachment on the State jurisdictions. Without 
this defensive power, every positive power, that can be given on paper, 
will be evaded and defeated. The States will continue to invade the 
national jurisdiction, to violate treaties and the law of nations, and to 
harass each other with rival and spiteful measures, dictated by mis- 
taken views of interest. Another happy effect of this prerogative, 
would be its control over the internal vicissitudes of State policy, and 
the aggressions of interested majorities on the rights of minorities and 
of individuals. The great desideratum which has not yet been found for 
republican governments, seems to be some disinterested and dispas- 
sionate umpire in disputes between different passions and interests 
in the State. The majority, who alone have the right of decision, have 
frequently an interest real or supposed in abusing it. In monarchies 
the sovereign is more neutral to the interests and views of different 
parties; but unfortunately he too often forms interests of his own, 
repugnant to those of the whole. Might not the national prerogative 
here suggested be found sufficiently disinterested for the decision of 
local questions of policy, whilst it would itself be sufficiently restrained 
from the pursuit of interests adverse to those of the whole society? 
There has not been any moment since the peace, at which the represent- 
atives of the Union would have given an assent to paper money or 
any other measure of a kindred nature. 

The national supremacy ought also to be extended, as I conceive, 
to the judiciary departments. If those, who are to expound and apply 
the laws, are connected by their interests and their oaths with the par- 
ticular States wholly, and not with the Union, the participation of the 
Union in the making of the laws may be possibly rendered unavailing. 
It seems, at least, necessary that the oaths of the Judges should include 
a fidelity to the general as well as local constitution, and that an appeal 



APPENDIX 559 

should He to some national tribunals in all cases to which foreigners Appendix 
or inhabitants of other States may be parties. The admiralty jurisdic- XII 

tion seems to fall entirely within the purview of the national govern- 
ment. The national supremacy in the executive departments is liable 
to some difficulty, unless the officers administering them could be made 
appointable by the supreme government. The militia ought certainly 
to be placed, in some form or other, under the authority which is en- 
trusted with the general protection and defence. 

A government composed of such extensive powers should be well 
organized and balanced. The legislative department might be divided 
into two branches, one of them chosen every years by the peo- 
ple at large, or by the legislatures; the other to consist of fewer mem- 
bers, to hold their places for a longer term, and to go out in such a 
rotation as always to leave in office a large majority of old members. 
Perhaps the negative on the laws might be most conveniently exercised 
by this branch. As a further check, a council of revision including the 
great ministerial officers, might be superadded. 

A national executive must also be provided. I have scarcely ventured 
as yet to form my own opinion either of the manner in which it ought 
to be constituted, or of the authorities with which it ought to be clothed. 
An article should be inserted expressly guarantying the tranquillity 
of the States against internal as well as external dangers. 

In like manner the right of coercion should be expressly declared. 
With the resources of commerce in hand, the national administration 
might always find means of exerting it either by sea or land. But the 
difficulty and awkwardness of operating by force on the collective will 
of a State render it particularly desirable, that the necessity of it might 
be precluded. 

Perhaps the negative on the laws might create such a mutuality of 
dependence between the general and particular authorities, as to answer 
this purpose; or perhaps some defined objects of taxation might be 
submitted, along with commerce, to the general authority. 

To ' give a new system its proper validity and energy, a ratification 
must be obtained from the people, and not merely from the ordinary 
authority of the legislatures. This will be the more essential, as in- 
roads on the existing constitutions of the States will be unavoidable. 

The enclosed address to the States on the subject of the treaty of 
peace has been agreed to by Congress, and forwarded to the several 
executives. We foresee the irritation, which it will excite in many of our 
countrymen; but could not withhold our approbation of the measure. 
Both the resolutions on the addresses passed without a dissenting voice. 

Congress continues to be thin, and of course to do little business of 
importance. 

The settlement of the public accounts, the disposition of the public 
lands, and arrangements with Spain, are subjects which claim their 
particular attention. As a step towards the first, the treasury board 
are charged with the task of reporting a plan by which the final decision 
on the claims of the States will be handed over from Congress to a select 



56o APPENDIX 

Appendix set of men, bound by the oaths, and clothed with the powers, of chan- 
XII cellors. As to the second article. Congress have it themselves under 

consideration. Between six and seven thousand acres have been sur- 
veyed, and are ready for sale. The mode of sale, however, will probably 
be a source of different opinions; as will the mode of disposing of the 
unsurveyed residue. The eastern gentlemen remain attached to the 
scheme of townships. Many others are equally strenuous for indis- 
criminate locations. The States, which have lands of their own for 
sale, are suspected of not being hearty in bringing the federal land 
to market. The business with Spain is becoming extremely delicate, 
and the information from the Western settlements truly alarming. 

A motion was made some days ago for an adjournment of Congress 
for a short period, and an appointment of Philadelphia for their reas- 
sembly. The eccentricity of this place, as well with regard to east and 
west as to north and south, has I find been for a considerable time a 
thorn in the minds of many of the Southern members. Suspicion too 
has charged some important votes on the weight thrown by the pre- 
sent position of Congress into the eastern scale, and predicts that the 
eastern members will never concur in any substantial provision or 
movement for a proper permanent seat for the national government, 
while they remain so much gratified by its temporary residence. These 
seem to have been the operating motives with those on one side, who 
were not locally interested in the removal. On the other side, the motives 
are obvious. 

Those of real weight were drawn from the apparent caprice with 
which Congress might be reproached, and particularly from the peculi- 
arity of the existing moment. I own, that I think so much regard due 
to these considerations, that, notwithstanding the powerful ones on the 
other side, I should have assented with repugnance to the motion, and 
would even have voted against it, if any probability had existed, that, 
by waiting for a proper time, a proper measure might not be lost for a 
very long time. The plan, which I should have judged most eligible, 
would have been to fix on the removal whenever a vote could be ob- 
tained, but so as that it should not take effect until the commencement 
of the ensuing federal year; and, if an immediate removal had been 
resolved on, I had intended to propose such a change in the plan. 

No final question was taken in the case; some preliminary questions 
showed that six States were in favor of the motion. Rhode Island, the 
seventh, was at first on the same side; and Mr. Varnum, one of her dele- 
gates, continues so. His colleague was overcome by the solicitations of 
his eastern brethren. As neither Maryland nor South Carolina was on 
the floor, it seems pretty evident that New York has a very precarious 
tenure of the advantages derived from the abode of Congress. 

We understand, that the discontents in Massachusetts, which lately 
produced an appeal to the sword, are now producing a trial of strength 
in the field of electioneering. The governor will be displaced. The 
Senate is said to be already of a popular complexion, and it is expected 
the other branch will be still more so. Paper money, it is surmised, will 



APPENDIX 561 

be the engine to be played ofif against creditors both public and private. Appendix 
As the event of the elections, however, is not yet decided, this informa- XII 

tion must be too much blended with conjecture to be regarded as a 
matter of certainty. I do not learn, that the proposed act relating to Ver- 
mont has yet gone through all the stages of legislation here ; nor can I 
say whether it will finally pass or not. In truth, it having not been a 
subject of conversation for some time, I am unable to say what has been 
done, or is likely to be done with it. With the sincerest affection, and the 
highest esteem, I have the honor to be, dear Sir, your devoted servant. 

Mr. Gaillard Hunt, In his charming Life of James Madison, p. 1 19, in speak- 
ing of the "Virginia Plan," says: "It contained the features of Madison's 
ideas of government, as outlined in his letters to Randolph and Washington, 
but it was Randolph's hand that actually drew up the resolutions known in the 
Convention as ' the Virginia Plan. '" In support of that assertion he refers to 
Rowland's Life of George Mason, ii, loi, where we find a letter written by 
George Mason from Philadelphia, May 20, 1787, to George Mason, Jr., say- 
ing that " the Virginia deputies (who are all here) meet and confer together 
two or three hours every day, in order to form a proper correspondence of 
sentiments; and for form's sake to see what new deputies are arrived, and to 
grow into some acquaintance with each other, we regularly meet every day 
at three o'clock." Not the slightest reference is made in the letter to Ran- 
dolph or to any part taken by him in the drafting of the Virginia plan. After 
the most careful examination the author finds nothing to give even color to 
such a statement. We know that for nearly a year Madison had been spe- 
cially engaged upon this work. (See "Preparation of Madison for Labors of 
Federal Convention," in Rives, Life and Times of James Madison, ii, 208.) 
The internal evidence is all in his favor, the style is evidently his. It is the 
deliberate and finished product of a careful hand that has spared no pains. 
There is no evidence whatever of any such preliminary labor upon the part 
of Randolph. There is positive evidence to the contraiy in Madison's letter 
to Randolph of April 8, 1787, in which he says: " My despair of your finding 
the necessary leisure as signified in one of your letters, as to the probability 
that some leading propositions at least would be expected from Virginia had 
engaged me in a closer attention to the subject than I should otherwise have 
given." Randolph almost expressly disclaimed authorship of the resolutions 
when, in the opening words of his speech, "He expressed his regret, that it 
should fall to him, rather than those who were of longer standing in life and 
political experience, to open the great subject of their mission. But as the 
Convention had originated from Virginia, and his colleagues supposed that 
some proposition was expected from them, they had imposed this task on him.'' 
There is no intimation that the task of drafting the resolutions had in any 
way been imposed on him. And here the very important fact should be noted 
that Randolph's speech is inserted entirely in Randolph's hand, while the 
Virginia plan is spread upon the journal in Madison's hand. There can be no 
reasonable doubt that Madison was the draftsman of the Virginia plan. It 
was undoubtedly his production both as to form and substance. He was in 
Philadelphia on February 16, 1783, at work in the Continental Congress, 
within a few blocks of the printing-house from which issued the epoch- 
making invention put forth by Pelatiah Webster on that day. After four 
years of study and reflection he restated, with his practiced hand, the 
essence of the great discovery in the Resolutions offered by Randolph in 
the Federal Convention on May 29, 1787. 



XIII 

THE PINCKNEY "PLAN OF A FEDERAL CONSTI- 
TUTION" PRESENTED TO THE FEDERAL CON- 
VENTION, MAY 29, 1787, BY CHARLES PINCKNEY 

(Reprinted from the copy furnished by him in 1818 to John Quincy 
Adams, Secretary of State. The history of that transaction has been given 
heretofore at page 33 $q. The following is a reprint from The Madison 
Papers, ii, 735-746.) 

Appendix Mr. Charles Pinckney laid before the House the draft of a federal 
XIII government which he had prepared, to be agreed upon between the free 

and independent States of America: 

PLAN OF A FEDERAL CONSTITUTION 

We, the people of the States of New Hampshire, Massachusetts, 
Rhode Island and Providence Plantations, Connecticut, New York, 
New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North 
Carolina, South Carolina, and Georgia, do ordain, declare, and estab- 
lish the following Constitution for the government of ourselves and 
posterity. 

ARTICLE I 

The style of this government shall be : The United States of America, 
and the government shall consist of supreme legislative, executive and 
judicial powers. 

ARTICLE II 

The legislative power shall be vested in a Congress, to consist of two 
separate Houses; one to be called the House of Delegates; and the other 
the Senate, who shall meet on the day of in every year. 

ARTICLE III 

The members of the House of Delegates shall be chosen every 

year by the people of the several States; and the qualification of the 
electors shall be the same as those of the electors in the several States 
for their Legislatures. Each member shall have been a citizen of the 

United States for years; and shall be of years of age, and 

a resident in the State he is chosen for. Until a census of the people shall 
be taken in the manner hereinafter mentioned, the House of Delegates 
shall consist of , to be chosen from the different States in the 



APPENDIX 563 

following proportions: for New Hampshire, ; for Massachusetts, Appendix 

; for Rhode Island, ; for Connecticut, ; for New XIII 

York, ; for New Jersey, ; for Pennsylvania, ; for 

Delaware, ; for Maryland, ; for Virginia, ; for North 

Carolina, ; for South Carolina, ; for Georgia, ; and 

the Legislature shall hereinafter regulate the number of Delegates by 
the number of inhabitants, according to the provisions hereinafter made, 

at the rate of one for every thousand. All money bills of every 

kind shall originate in the House of Delegates, and shall not be altered 
by the Senate. The House of Delegates shall exclusively possess the 
power of impeachment, and shall choose its own ofificers; and vacancies 
therein shall be supplied by the executive authority of the States in 
the representation from which they shall happen. 

ARTICLE IV 

The Senate shall be elected and chosen by the House of Delegates; 
which House, immediately after their meeting, shall choose by ballot 
Senators from among the citizens and residents of New Hamp- 
shire; from among those of Massachusetts; — ■ from among 

those of Rhode Island ; — from among those of Connecticut ; 

from among those of New York; from among those of New Jer- 
sey; from among those of Pennsylvania; ■ from among 

those of Delaware ; from among those of Maryland ; from 

among those of Virginia ; from among those of North Carolina ; 

from among those of South Carolina; and from among 

those of Georgia. The Senators chosen from New Hampshire, Massa- 
chusetts, Rhode Island, and Connecticut, shall form one class; those 
from New York, New Jersey, Pennsylvania and Delaware, one class; 
and those from Maryland, Virginia, North Carolina, South Carolina 
and Georgia, one class. The House of Delegates shall number these 
classes one, two, and three ; and fix the times of their service by lot. The 

first class shall serve for years; the second for years; and 

the third for years. As their times of service expire, the House of 

Delegates shall fill them up by elections for years; and they shall 

fill all vacancies that arise from death or resignation, for the time of ser- 
vice remaining of the members so dying or resigning. Each Senator 

shall be years of age at least; and shall have been a citizen of the 

United States for four years before his election ; and shall be a resident 
of the State he is chosen from. The Senate shall choose its own officers. 

ARTICLE V 

Each State shall prescribe the time and manner of holding elections 
by the people for the House of Delegates; and the House of Delegates 
shall be the judges of the elections, returns, and qualifications of their 
members. 

In each House a majority shall constitute a quorum to do business. 
Freedom of speech and debate in the Legislature shall not be im- 



564 APPENDIX 

Appendix peached, or questioned, in any place out of it; and the members of both 

XIII Houses shall in all cases, except for treason, felony, or breach of the 

peace, be free from arrest during their attendance on Congress, and in 

going to and returning from it. Both Houses shall keep Journals of their 

proceedings, and publish them, except on secret occasions; and the Yeas 

and Nays may be entered thereon at the desire of one of the 

members present. Neither House, without the consent of the other, 

shall adjourn for more than days, nor to any place but where 

they are sitting. 

The members of each House shall not be eligible to, or capable of 
holding, any office under the Union, during the time for which they have 
been respectively elected ; nor the members of the Senate for one year 
after. The members of each House shall be paid for their services by 
the States which they represent. Every bill which shall have passed the 
Legislature shall be presented to the President of the United States for 
his revision; if he approves it, he shall sign it; but if he does not approve 
it, he shall return it, with his objections, to the House it originated in; 
which House, if two thirds of the members present, notwithstanding 
the President's objections, agree to pass it, shall send it to the other 
House, with the President's objections; where if two thirds of the mem- 
bers present also agree to pass it, the same shall become a law; and all 

bills sent to the President, and not returned by him within days, 

shall be laws, unless the Legislature, by their adjournment prevent their 
return; in which case they shall not be laws. 

ARTICLE VI 

The Legislature of the United States shall have the power to lay and 
collect taxes, duties, imposts, and excises; 

To regulate commerce with all nations, and among the several States; 

To borrow money and emit bills of credit; 

To establish post-offices; 

To raise armies; 

To build and equip fleets; 

To pass laws for arming, organizing, and disciplining the militia of the 
United States; 

To subdue a rebellion in any State, on application of its Legislature; 

To coin money, and regulate the value of all coins, and to fix the 
standard of weights and measures; 

To provide such dockyards and arsenals, and erect such fortifications 
as may be necessary for the United States, and to exercise exclusive 
jurisdiction therein; 

To appoint a Treasurer, by ballot; 
..To constitute tribunals inferior to the Supreme Court; 

To establish post and military roads; 
-^ To establish and provide for a national university at the seat of gov- 
ernment of the United States; 

To establish uniform rules of naturalization; 

To provide for the establishment of a seat of government for the 



"appendix 565 

United States, not exceeding miles square, in which they shall Appendix 

have exclusive jurisdiction; XIII 

To make rules concerning captures from an enemy; 

To declare the law and punishment of piracies and felonies at sea, and 
of counterfeiting coin, and of all offences against the laws of nations; 

To call forth the aid of the militia to execute the laws of the Union, 
enforce treaties, suppress insurrections, and repel invasions; 

And to make all laws for carrying the foregoing powers into execution. 

The Legislature of the United States shall have the power to declare 
the punishment of treason, which shall consist only in levying war against 
the United States, or any of them, or in adhering to their enemies. No 
person shall be convicted of treason but by the testimony of two wit- 
nesses. 

The proportion of direct taxation shall be regulated by the whole 
number of inhabitants of every description ; which number shall, within 

years after the first meeting of the Legislature, and within the 

term of every year after, be taken in the manner to be prescribed 

by the Legislature. 

No tax shall be laid on articles exported from the States; nor capita- 
tion tax but in proportion to the census before directed. 
^ All laws regulating commerce shall require the assent of two thirds 
of the members present in each House. The United States shall not 
grant any title of nobility. The Legislature of the United States shall 
pass no law on the subject of religion; nor touching or abridging the 
liberty of the press ; nor shall the privilege of the writ of Habeas Corpus 
ever be suspended, except in case of rebellion or invasion. 

All acts made by the Legislature of the United States, pursuant to 
this Constitution, and all treaties made under the authority of the 
United States, shall be the supreme law of the land; and all judges 
shall be bound to consider them as such in their decisions. 

ARTICLE VII 

The Senate shall have the sole and exclusive power to declare war; 
and to make treaties ; and to appoint ambassadors and other Ministers 
to foreign nations; and judges of the Supreme Court. 

They shall have the exclusive power to regulate the manner of 
deciding all disputes and controversies now existing, or which may arise, 
between the States, respecting jurisdiction or territory. 

ARTICLE VIII 

The executive power of the United States shall be vested in a Pre- 
sident of the United States of America, which shall be his style; and his 

title shall be His Excellency. He shall be elected for years; and 

shall be re-eligible. He shall from time to time give information to the 
Legislature, of the state of the Union, and recommend to their considera- 
tion the measures he may think necessary. He shall take care that the 
laws of the United States be duly executed. He shall commission all the 



566 APPENDIX 

Appendix officers of the United States; and, except as to ambassadors, other min- 
XIII isters, and judges of the Supreme Court, he shall nominate, and, with 

the consent of the Senate, appoint, all other officers of the United States. 
He shall receive public ministers from foreign nations; and may corre- 
spond with the Executives of the different States. He shall have power 
to grant pardons and reprieves, except in impeachments. He shall be 
Commander-in-Chief of the army and navy of the United States, and 
of the militia of the several States; and shall receive a compensation 
which shall not be increased or diminished during his continuance in 
office. At entering on the duties of his office, he shall take an oath faith- 
fully to execute the duties of a President of the United States. He shall 
be removed from his office on impeachment by the House of Delegates, 
and conviction in the Supreme Court of treason, bribery or corruption. 
In case of his removal, death, resignation or disability, the President of 
the Senate shall exercise the duties of his office until another President 
be chosen. And in case of the death of the President of the Senate, the 
Speaker of the House of Delegates shall do so. 

ARTICLE IX 

The Legislature of the United States shall have the power, and it shall 
be their duty, to establish such courts of law, equity, and admiralty, 
as shall be necessary. 

The judges of the courts shall hold their offices during good behaviour; 
and receive a compensation, which shall not be increased or diminished 
during their continuance in office. One of these courts shall be termed 
the Supreme Court; whose jurisdiction shall extend to all cases arising 
under the laws of the United States, or affecting ambassadors, other 
public ministers and consuls; to the trial of impeachment of officers of 
the United States; to all cases of admiralty and maritime jurisdiction. 
In cases of impeachment affecting ambassadors and other public min- 
isters, this jurisdiction shall be original; and in all other cases appellate. 

All criminal offences, except in cases of impeachment, shall be tried in 
the State where they shall be committed. The trials shall be open and 
public, and shall be by jury. 

ARTICLE X 

Immediately after the first census of the people of the United States, 
the House of Delegates shall apportion the Senate by electing for each 

State, out of the citizens resident therein, one Senator for every 

members each State shall have in the House of Delegates. Each State 
shall be entitled to have at least one member in the Senate. 

ARTICLE XI 

No State shall grant letters of marque and reprisal, or enter into a 
treaty, or alliance, or confederation; nor grant any title of nobility; 
nor without the consent of the Legislature of the United States, lay any 
impost on imports; nor keep troops or ships of war in time of peace; nor 



' APPENDIX 567 

enter into compacts with other States or foreign powers; nor emit bills Appendix 
of credit; nor make anything but gold, silver, or copper, a tender in XIII 
payment of debts ; nor engage in war except for self-defence when actu- 
ally invaded, or the danger of invasion be so great as not to admit of 
a delay until the Government of the United States can be informed 
thereof. And to render these prohibitions effectual, ^the Legislature 
of the United States shall have the power to revise the laws of the 
several States that may be supposed to infringe the powers exclusively 
delegated by this Constitution to Congress, and to negative and annul 
such as do. 

ARTICLE XII 

The citizens of each State shall be entitled to all privileges and im- 
munities of citizens in the several States. Any person, charged with 
crimes in any State, fleeing from justice to another, shall, on demand 
of the Executive of the State from which he fled, be delivered up, and 
removed to the State having jurisdiction of the offence. 

ARTICLE XIII 

Full faith shall be given, in each State, to the acts of the Legislature, 
and to the records and judicial proceedings of the courts and magistrates, 
of every State. 

ARTICLE XrV 

The Legislature shall have power to admit new States into the Union, 
on the same terms with the original States; provided two thirds of the 
members present in both Houses agree. 

ARTICLE XV 

On the application of the Legislature of a State, the United States 
shall protect it against domestic insurrection. 

ARTICLE XVI 

If two thirds of the Legislatures of the States apply for the same, the 
Legislature of the United States shall call a convention for the purpose 
of amending the Constitution or, should Congress, with the consent of 
two thirds of each House, propose to the States amendments to the 
same, agreement of two thirds of the Legislatures of the States shall be 
suflScient to make the said amendments parts of the Constitution. 

The ratification of the conventions of States shall be 

sufficient for organizing this Constitution. 

Ordered that the said draft be referred to the Committee of the Whole 
appointed to consider the state of the Americaa Union. 

Adjourned. 



XIV 



THE ALEXANDER HAMILTON PLAN 

CONSISTING OF THE ELEVEN PROPOSITIONS ACTUALLY PRE- 
SENTED BY HIM TO THE FEDERAL CONVENTION ON JUNE 1 8, 
WHICH WERE FOLLOWED BY HIS GREAT SPEECH OF FIVE 
HOURS, AND THE MORE ELABORATE PLAN OF A "CONSTITU- 
TION OF GOVERNMENT BY THE PEOPLE OF THE UNITED STATES 
OF AMERICA," NOT FORMALLY INTRODUCED IN THE CONVEN- 
TION, BUT HANDED TOWARDS ITS CLOSE TO MADISON, WHO 
RETAINED A COPY OF IT 

[The following is the text of the two documents, as printed in The Works 
of Alexander Hamilton (Lodge ed.), vol. i, pp. 347-369.] 

PROPOSITIONS FOR A CONSTITUTION OF GOVERNMENT 

Appendix I. The supreme legislative power of the United States of America 
XIV is to be vested in two distinct bodies of men ; the one to be called the 

Assembly, the other the Senate; who together shall form the Legisla- 
ture of the United States, with power to pass all laws whatsoever, sub- 
ject to the negative hereafter mentioned. 

n. The Assembly to consist of persons elected by the people, to 
serve for three years. 

in. The Senate to consist of persons elected to serve during good 
behaviour. Their election to be made by electors chosen for that 
purpose by the people. In order to this, the States to be divided into 
election districts. On the death, removal, or resignation of any Sena- 
tor, his place to be filled out of the district from which he came. 

IV. The supreme executive authority of the United States to be 
vested in a Governor, to be elected to serve during good behaviour. 
His election to be made by electors chosen by the people, in the election 
districts aforesaid; or by electors chosen for that purpose by the re- 
spective Legislatures — provided that if an election be not made 
within a limited time, the President of the Senate shall be the Governor. 
The Governor to have a negative upon all laws about to be passed — 
and (to have) the execution of all laws passed — to be the Commander- 
in-Chief of the land and naval forces and of the militia of the United 
States — to have the entire direction of war when authorized or be- 
gun — to have, with the advice and approbation of the Senate, the 
po\irer of making all treaties — to have the appointment of the heads 



appendix' 569 

or chief officers of the departments of finance, war, and foreign affairs — Appendix 
to have the nomination of all other officers (ambassadors to foreign XIV 
nations included) subject to the approbation or rejection of the Sen- 
ate — to have the power of pardoning all offences but treason, which 
he shall not pardon without the approbation of the Senate. 

V. On the death, resignation, or removal of the Governor, his au- 
thorities to be exercised by the President of the Senate (until a suc- 
cessor be appointed). 

VI. The Senate to have the sole power of declaring war — the power 
of advising and approving all treaties — the power of appro\-ing or 
rejecting all appointments of officers, except the heads or chiefs of the 
departments of finance, war, and foreign affairs. 

VII. The Supreme judicial authority- of the United States to be vested 
in twelve judges, to hold their offices during good beha\'iour, with ade- 
quate and permanent salaries. This court to have original jurisdiction 
in all causes of capture, and an appellate jurisdiction (from the courts 
of the several States) in all causes in which the revenues of the General 
Government or the citizens of foreign nations are concerned. 

VIII. The Legislature of the United States to have power to in- 
stitute courts in each State for the determination of all causes of cap- 
ture, and of all matters relating to their revenues, or in which the 
citizens of foreign nations are concerned. 

IX. The Governor, Senators, and all officers of the United States 
to be liable to impeachments for mal and corrupt conduct, and upon 
conviction to be removed from office, and disqualified for holding any 
place of trust or profit. 

All impeachments to be tried by a court, to consist of the judges of 
the Supreme Court, chief or senior judge of the Superior Court of law 
of each State — provided that such judge hold his place during good 
behaviour and have a permanent salary. 

X. All laws of the particular States contrar>' to the Constitution 
or laws of the United States to be utterly void. And the better to pre- 
vent such laws being passed, the Governor or President of each State 
shall be appointed by the General Government and shall have a nega^ 
tive upon the laws about to be passed in the State of which he is Gov- 
ernor or President. 

XI. No State to have any forces, land or naval — and the militia 
of all the States to be under the sole and exclusive direction of the 
United States, the officers of which to be appointed and commissioned 
by them. 



570 APPENDIX 

Appendix CONSTITUTION OF GOVERNMENT BY THE PEOPLE OF THE UNITED 
^^^ STATES OF AMERICA 

First Draft of Hamilton, 1787 

The people of the United States of America do ordain and establish 
this Constitution for the government of themselves and their posterity. 

ARTICLE I 

Sec. I. The legislative power shall be vested in two distinct bodies 
of men, one to be called the Assembly, and the other the Senate, sub- 
ject to the negative hereinafter mentioned. 

Sec, 2. The executive power, with the qualifications hereinafter 
specified, shall be vested in a President of the United States. 

Sec. 3. The supreme judicial authority, except in the cases other- 
wise provided for in this Constitution, shall be vested in a court, to be 
called the Supreme Court, to consist of not less than six nor more than 
twelve judges. 

ARTICLE II 

Sec. I. The Assembly shall consist of persons to be called Repre- 
sentatives, who shall be chosen, except in the first instance, by the free 
male citizens and inhabitants of the several States comprehended in 
the Union, all of whom, of the age of twenty-one years and upwards, 
shall be entitled to equal vote. 

Sec. 2. But the first Assembly shall be chosen in the manner pre- 
scribed in the last Article, and shall consist of a hundred members, of 
whom New Hampshire shall have five, Massachusetts thirteen, Rhode 
Island two, Connecticut seven. New York nine. New Jersey six, Penn- 
sylvania twelve, Delaware two, Maryland eight, Virginia sixteen, 
North Carolina eight. South Carolina eight, Georgia four. 

Sec. 3. The Legislature shall provide for the future election of 
Representatives, apportioning them in each State, from time to time, 
as nearly as may be to the number of persons described in the 4th 
Section of the 7th Article, so as that the whole number of Represent- 
atives shall never be less than one hundred nor more than 

hundred. There shall be a census taken for this purpose within three 
years after the first meeting of the Legislature and within every suc- 
cessive period of ten years. The term for which representatives shall 
be elected shall be determined by the Legislature, but shall not ex- 
ceed three years. There shall be a general election at least once in 
three years, and the time of service of all the members in each As- 
sembly shall begin (except in filling vacancies) on the same day, and 
shall end on the same day. 

Sec. 4. Forty members shall make a House sufficient to proceed to 
business; but this number may be increased by the Legislature, yet so 
as never to exceed a majority of the whole number of Representatives. 



APPENDIX 571 

Sec. 5. The Assembly shall choose its President and other officers, Appendix 
shall judge of the qualifications and election of its own members, XIV 

shall punish them for improper conduct in their capacity of Represent- 
atives, not extending to life or limb, and shall exclusively possess the 
power of impeachment, except in the case of the President of the United 
States; but no impeachment of a member of the Senate shall be by less 
than two thirds of the Representatives present. 

Sec. 6. Representatives may vote by proxy, but no Representative 
present shall be proxy for more than one who is absent. 

Sec. 7. Bills for raising revenue, and bills for appropriating monies, 
for the support of fleets and armies, and for paying the salaries of the 
officers of the Government, shall originate in the Assembly, but may be 
altered and amended by the Senate. 

Sec. 8. The acceptance of an office under the United States by a 
Representative, shall vacate his seat in the Assembly. 

ARTICLE III 

Sec. I. The Senate shall consist of persons to be chosen, except in 
the first instance, by electors elected for that purpose by the citizens 
and inhabitants of the several States comprehended in the Union, who 
shall have in their own right, or in the right of their wives, an estate in 
land for not less than life, or a term of years, whereof at the time of 
giving their votes there shall be at least fourteen years unexpired. 

Sec. 2. But the full Senate shall be chosen in the manner prescribed 
in the last Article, and shall consist of forty members, to be called 

Senators, of whom New Hampshire shall have , Massachusetts 

, Rhode Island , Connecticut , New York , 

New Jersey , Pennsylvania , Delaware , Mary- 
land , Virginia , North Carolina , South Carolina 

■ , Georgia , 

Sec. 3. The Legislature shall provide for the future elections of 
Senators; for which purpose the States respectively, which have more 
than one Senator, shall be divided into convenient districts to which 
the Senators shall be apportioned. A State having but one Senator 
shall be itself a district. On the death, resignation, or removal from 
office of a Senator, his place shall be supplied by a new election in the 
district from which he came. Upon each election there shall be not 
less than six nor more than twelve electors chosen in a district. 

Sec. 4. The number of Senators shall never be less than forty, nor 
shall any State, if the same shall not hereafter be divided, ever have 
less than the number allotted to it in the second Section of this Article; 
but the Legislature may increase the whole number of Senators, in the 
same proportion to the whole number of Representatives as forty is 
to one hundred, and such increase, beyond the present number, shall 
be apportioned to the respective States in a ratio to the respective 
numbers of their Representatives. 

Sec. 5. If States shall be divided, or if a new arrangement of the 
boundaries of two or more States shall take place, the Legislature shall 



572 APPENDIX 

Appendix apportion the number of Senators (in elections succeeding such division 
XIV or arrangement) to which the constituent parts were entitled accord- 

ing to the change of situation, having regard to the number of persons 
described in the 4th Section of the 7th Article. 

Sec. 6. The Senators shall hold their places during good behaviour, 
removable only by conviction, on impeachment for some crime or mis- 
demeanor. They shall continue to exercise their offices when impeached 
until a conviction shall take place. Sixteen Senators, attending in 
person, shall be sufficient to make a house to transact business; but the 
Legislature may increase this number, yet so as never to exceed a ma- 
jority of the whole number of Senators. The Senators may vote by 
proxy, but no Senator who is present shall be proxy for more than two 
who are absent. 

Sec. 7. The Senate shall choose its President and other officers, 
shall judge of the qualifications and elections of its members, and shall 
punish them for improper conduct in their capacity of Senators; but 
such punishment shall not extend to life or limb, nor to expulsion. In 
the absence of their President they may choose a temporary President. 
The President shall only have a casting vote when the House is equally 
divided. 

Sec. 8. The Senate shall exclusively have the power of declaring 
war. No treaty shall be made without their advice and consent; 
which shall also be necessary to the appointment of all officers, except 
such for which a different provision is made in this Constitution. 

article IV 

Sec. I. The President of the United States of America (except in the 
first instance) shall be elected in the manner following: 

The judges of the Supreme Court shall, within sixty days after a va- 
cancy shall happen, cause public notice to be given in each State of such 
vacancy, appointing therein three several days for the several pur- 
poses following, to wit: a day for commencing the election of electors 
for the purposes thereinafter specified, to be called the first electors^ 
which day shall be not less than forty nor more than sixty days after 
the day of the publication of the notice in each State ; another day for 
the meeting of the electors, not less than forty nor more than ninety 
days from the day commencing their election; another day for the meet- 
ing of the electors, to be chosen by the first electors, for the purpose 
hereinafter specified, and to be called the second electors, which day 
shall be not less than forty nor more than sixty days after the day for 
the meeting of the first electors. 

Sec. 2. After notice of a vacancy shall have been given, there shall 
be chosen in each State a number of persons, as the first electors in the 
preceding Section mentioned, equal to the whole number of the Re- 
presentatives and Senators of such State in the Legislature of the United 
States; which electors shall be chosen by the citizens of such State 
having an estate of inheritance or for three lives in land, or a clear 
personal estate of the value of one thousand Spanish milled dollars 
of the present standard. 



APPENDIX 573 

Sec. 3. These first electors shall meet in their respective States at Appendix 
the time appointed, at one place, and shall proceed to vote by ballot XIV 
for a President who shall not be one of their own number, unless the 
Legislature upon experiment should hereafter direct otherwise. They 
shall cause two lists to be made of the name or names of the person 
or persons voted for, which they, or the major part of them shall sign 
and certify. They shall then proceed each to nominate individually, 
openly, in the presence of the others, two persons, as for second elect- 
ors; and out of the persons who shall have the four highest numbers of 
nominations, they shall afterwards, by ballot, by plurality of votes, 
choose two who shall be the second electors, to each of whom shall 
be delivered one of the lists before mentioned. These second electors 
shall not be any of the persons voted for as President. A copy of the 
same list, signed & certified in like manner, shall be transmitted by the 
first electors, to the seat of the government of the United States, under 
a sealed cover, directed to the President of the Assembly, which, after 
the meeting of the second electors, shall be opened for the inspection 
of the two Houses of the Legislature. 

Sec. 4. These second electors, shall meet precisely on the day ap- 
pointed, and not on another day, at one place. The chief-justice of the 
Supreme Court, or if there be no chief-justice, the judge junior in office, 
in such court, or if there be no one judge junior in office, some other 
judge of that court, by the choice of the rest of the judges, or of a ma- 
jority of them, shall attend at the same place, and shall preside at the 
meeting, but shall have no vote. Two thirds of the whole number of 
the electors shall constitute a sufficient meeting for the execution of 
their trust. At this meeting, the list delivered to the respective electors 
shall be produced and inspected, and if there be any person who has a 
majority of the whole number of the votes given by the first electors, 
he shall be the President of the United States. But if there be no such 
person, the second electors so met shall proceed to vote by ballot for 
one of the persons, named in the list, who shall have the three highest 
numbers of the votes of the first electors; and if upon the first or any 
succeeding ballot, on the day of the meeting, either of those persons 
shall have a number of votes equal to a majority of the whole number 
of second electors chosen, he shall be the President ; but if no such choice 
be made on the day appointed for the meeting, either by reason of the 
non-attendance of the second electors, or their not agreeing, or any 
other matter, the person having the greatest number of votes of the 
first electors shall be the President. 

Sec. 5. If it should happen that the chief-justice or some other judge 
of the Supreme Court should not attend in due time, the second elect- 
ors shall proceed to the execution of their trust without him. 

Sec. 6. If the judges should neglect to cause the notice required by 
the first Section of this Article to be given within the time therein 
limited, they may, nevertheless, cause it to be afterwards given; but 
their neglect, if wilful, is hereby declared to be an offence, for which 
they may be impeached, and if convicted they shall be punished as in 
other cases of conviction on impeachment. 



574 APPENDIX 

Appendix Sec. 7. The Legislature shall, by permanent laws, provide such fur- 
XIV ther regulations as may be necessary for the more orderly election of 

the President, not contravening the provisions herein contained. 

Sec. 8. The President, before he shall enter upon the execution of his 
office, shall take an oath or affirmation faithfully to execute the same, 
and to the utmost of his judgment and power to protect the rights of 
the people and preserve the Constitution inviolate. 

This oath or affirmation shall be administered by the President of 
the Senate, for the time being, in the presence of both Houses of the 
Legislature. 

Sec. 9. The Senate and the Assembly shall always convene in ses- 
sion on the day appointed for the meeting of the second electors, and 
shall continue sitting till the President take the oath or affirmation of 
office. He shall hold his office during good behaviour, removable only 
by conviction upon an impeachment for some crime or misdemeanor. 

Sec. 10. The President, at the beginning of every meeting of the 
Legislature, as soon as they shall be ready to proceed to business, shall 
convene them together at the place where the Senate shall sit, and shall 
communicate to them all such matters as may be necessary for their 
information, or as may require their consideration. He may, by mes- 
sage, during the session, communicate all other matters which may ap- 
pear to him proper. He may, whenever in his opinion the public busi- 
ness shall require it, convene the Senate and Assembly, or either of 
them, and may prorogue them for a time, not exceeding forty days at 
one prorogation ; and if they should disagree about their adjournment, 
he may adjourn them to such time as he shall think proper. He shall 
have a right to negative all bills, resolutions, or acts of the two Houses 
of the Legislature about to be passed into laws. He shall take care that 
the laws be faithfully executed. He shall be the Commander-in-Chief 
of the Army and Navy of the United States and of the Militia within the 
several States, and shall have the direction of war, when commenced ; 
but he shall not take the actual command in the field of an army with- 
out the consent of the Senate and the Assembly. 

All treaties, conventions, and agreements with foreign nations shall 
be made by him, by and with the advice and consent of the Senate. He 
shall have the appointment of the principal or chief officer of each of the 
departments of war, naval affairs, finances, and foreign affairs; and 
shall have the nomination, and, by and with the consent of the Senate, 
the appointment of all other officers to be appointed under the author- 
ity of the United States, except such for whom different provision is 
made by this Constitution; and provided, that this shall not be con- 
strued to prevent the Legislature from appointing by name, in their 
laws, persons to special and particular trusts created in such laws ; nor 
shall be construed to prevent principals in office, merely ministerial, 
from constituting deputies. In the recess of the Senate he may fill va- 
cancies in offices, by appointments, to continue in force until the end 
of the next session of the Senate; and he shall commission all officers. 
He shall have power to pardon all offences except treason, for which 



APPENDIX 575 

he may grant reprieves until the opinion of the Senate and the Appendix 
Assembly can be had, and with their concurrence may pardon the XIV 
same. 

Sec. II. He shall receive a fixed compensation for his services, to be 
paid to him at stated times, and to be increased or diminished during 
his continuance of office. 

Sec. 12. If he depart out of the United States without the consent of 
the Senate & Assembly, he shall thereby abdicate his office. 

Sec. 13. He may be impeached for any crime or misdemeanor by 
the two Houses of the Legislature, two thirds of each House concur- 
ring ; and if convicted shall be removed from ofiice. He may be after- 
ward tried and punished in the ordinary course of law. His impeach- 
ment shall operate as a suspension from office untU the determination 
thereof. 

Sec. 14. The President of the Senate shall be Vice-President of the 
United States. On the death, resignation, impeachment, removal from 
office, or absence from the United States of the President thereof, the 
Vice-President shall exercise all the powers by this Constitution vested 
in the President, until another shall be appointed, or until he shall 
return within the United States, if his absence was with the consent of 
the Senate and Assembly. 

ARTICLE V 

Sec. I. There shall be a chief -justice of the Supreme Court, and he, 
with the other judges thereof, shall hold their offices during good be- 
haviour, removable only by conviction on impeachment for some crime 
or misdemeanor. Each judge shall have a competent salary, to be paid 
to him at stated times, and not to be diminished during his continuance 
in office. 

The Supreme Court shall have original jurisdiction in all causes in 
which the United States shall be a party; in all controversies between 
the United States and a particular State, or between two or more States, 
except such as relate to a claim of territory between the United States 
and one or more States, which shall be determined in the mode pre- 
scribed in the 6th Article; in all cases affecting foreign ministers, con- 
suls and agents; and an appellate jurisdiction, both as to law and fact, 
in all cases which shall concern the citizens of different States, and in all 
others in which the fundamental rights of this Constitution are involved, 
subject to such exceptions as are herein contained, and to such regula- 
tions as the Legislature shall provide. 

The judges of all courts which may be constituted by the Legislature 
shall also hold their places during good behaviour, removable only by 
conviction on impeachment for some crime or misdemeanor; and shall 
have competent salaries, to be paid at stated times, and not to be di- 
minished during their continuance in office; but nothing herein con- 
tained shall be construed to prevent the Legislature from abolishing 
such courts themselves. 



576 APPENDIX 

Appendix ' All crimes, except upon impeachment, shall be tried by a jury of 
XIV twelve men; and if they shall have been committed within any State, 

shall be tried within such State. And all civil causes arising under this 
Constitution of the like kind with those which have been heretofore 
triable by jury in the respective States, shall in like manner be tried by 
jury, unless in special cases the Legislature shall think proper to make 
different provision, to which provision the concurrence of two thirds of 
both Houses shall be necessary. 

Impeachments of the President and Vice-President of the United 
States, members of the Senate, the Governors and Presidents of the 
several States, the principal or chief officers of the departments enum- 
erated in the loth Section of the 4th Article, ambassadors, and other 
like public ministers, the judges of the Supreme Court, generals and 
admirals of the navy, shall be tried by a court to consist of the judges 
of the Supreme Court, and the chief-justice, or first or senior judge of 
the Superior Court of law in each State, of whom twelve shall constitute 
a court. A majority of the judges present may convict. All other per- 
sons shall be tried on impeachment, by a court to consist of the judges 
of the Supreme Court, and six Senators drawn by lot; a majority of 
whom may convict. Impeachments shall clearly specify the particular 
offence for which the party accused is to be tried; and judgment on 
conviction upon the trial thereof shall be either a removal from office 
singly, or removal from office and disqualification for holding any future 
office or place of trust. But no judgment on impeachment shall prevent 
prosecution and punishment in the ordinary course of law, provided 
that no judge concerned in such conviction shall sit as judge on the 
second trial. The Legislature may remove the disabilities incurred by 
conviction on impeachment. 

ARTICLE VI 

Controversies about the right of territory between the United States 
and particular States shall be determined by a court to be constituted 
in manner following: The State or States claiming in opposition to the 
United States, as parties, shall nominate a number of persons equal to 
double the number of the judges of the Supreme Court, for the time 
being, of whom none shall be citizens by birth of the States which are 
parties, nor inhabitants thereof, when nominated, and of whom not 
more than two shall have their actual residence in one State. Out of the 
persons so nominated, the Senate shall elect one half, who, together with 
the judges of the Supreme Court, shall form the court. Two thirds of the 
whole number may hear and determine the controversy, by plurality of 
voices. The States concerned may, at their option, claim a decision by 
the Supreme Court only. All the members of the court hereby instituted 
shall, prior to the hearing of the cause, take an oath impartially, and ac- 
cording to the best of their judgments and conscienceSj to hear and de- 
termine the controversy. 



APPENDIX 577 



ARTICLE VII 

Sec. I. The Legislature of the United States shall have power to pass 
all laws which they shall judge necessar^'^ to the common defence and 
safety, and to the general welfare of the Union. But no bill, resolution, 
or act of the Senate and Assembly shall have the force of a law until it 
shall have received the assent of the President, or of the Vice-President 
when exercising the powers of the President; and if such assent shall 
not have been given within ten days after such bill, resolution, or other 
act shall have been presented for that purpose, the same shall not be a 
law. No bill, resolution, or other act not assented to shall be revived in 
the same session of the Legislature. The mode of signifying such assent 
shall be by signing the bill, act or resolution, and returning it so signed 
to either House of the Legislature. 

Sec. 2. The enacting style of all laws shall be: Be it enacted by the 
people of the United States of America. 

Sec. 3. No bill of attainder shall be passed, nor any ex-post-facto law; 
nor shall any title of nobility be granted by the United States, or by 
either of them ; nor shall any person holding an office or place of trust 
under the United States, without the permission of the Legislature, 
accept any present, emolument, office, or title from a foreign prince or 
state. Nor shall any religious sect or denomination, or religious test for 
any office or place, be ever established by law. 

Sec. 4. Taxes on lands, houses, and other real estate, and capitation 
taxes, shall be proportioned in each State by the whole number of free 
persons, except Indians not taxed, and by three fifths of all other 
persons. 

Sec. 5. The two Houses of the Legislature may by joint ballot ap- 
point a Treasurer of the United States. Neither House (in the session 
of both Houses) without the consent of the other shall adjourn for more 
than three days at a time. The Senators & Representatives in attend- 
ing, going to and coming from the session of their respective Houses 
shall be privileged from arrest except for crimes and breaches of the 
peace. The place of meeting shall always be at the seat of government, 
which shall be fixed by law. 

Sec. 6. The laws of the United States and the treaties which have 
been made under the Articles of the Confederation, and which shall be 
made under this Constitution, shall be the supreme law of the land, and 
shall be so construed by the courts of the several States. 

Sec. 7. The Legislature shall convene at least once in each year, 
which, unless otherwise provided for by law, shall be the first Monday 
in December. 

Sec. 8. The members of the two Houses of the Legislature shall 
receive a reasonable compensation for their services, to be paid out of 
the treasury of the United States, and ascertained by law. The law for 
making such provision shall be passed, with the concurrence of the first 
Assembly, and shall extend to succeeding Assemblies; and no succeeding 
Assembly shall concur in an alteration of such provision so as to increase 



Appendix 
XIV 



578 APPENDIX 

Appendix its own compensation; but there shall be always a law in existence for 
XIV making such provision. 

ARTICLE VIII 

Sec. I. The Governor or President of each State shall be appointed 
under the authority of the United States, and shall have a right to 
negative all laws about to be passed in the State of which he shall be 
Governor or President, subject to such qualifications and regulations as 
the Legislature of the United States shall prescribe. He shall in other 
respects have the same powers only which the Constitution of the 
State does or shall allow its Governor or President, except as to the ap- 
pointment of officers of the militia. 

Sec. 2. Each Governor or President of a State shall hold his office 
until a successor be actually appointed, unless he die or resign or be 
removed from office by conviction on impeachment. There shall be no 
appointment of such Governor or President in the recess of the Senate. 

The Governors and Presidents of the several States at the time of the 
ratification of this Constitution, shall continue in office in the same 
manner and with the same powers as if they had been appointed pur- 
suant to the first Section of this Article. 

The officers of the militia in the several States may be appointed under 
the authority of the United States, the Legislature whereof may author- 
ize the Governors or Presidents of States to make such appointments, 
with such restrictions as they shall think proper. 

ARTICLE IX 

Sec. I. No person shall be eligible to the office of President of the 
United States unless he be now a citizen of one of the States, or here- 
after be born a citizen of the United States. 

Sec. 2. No person shall be eligible as a Senator or Representative 
unless at the time of his election he be a citizen and inhabitant of the 
State in which he is chosen; provided that he shall not be deemed to be 
disqualified by a temporary absence from the state. 

Sec. 3. No person entitled by this Constitution to elect or to be 
elected President of the United States, or a Senator or Representative 
in the Legislature thereof, shall be disqualified but by the conviction of 
some offence for which the law shall have previously ordained the pun^ 
ishment of disqualification. But the Legislature may by law provide 
that persons holding offices under the United States, or either of them, 
shall not be eligible to a place in the Assembly or Senate, and shall be, 
during their continuance in office, suspended from sitting in the Senate. 

Sec. 4. No person having an office or place of trust under the United 
States shall, without permission of the Legislature, accept any present, 
emolument, office or title from any foreign prince or state. 

Sec. 5. The citizens of each State shall be entitled to the rights, 
privileges, and immunities of citizens in every other State; and full faith 
and credit shall be given in each State to the public acts, records, and 
judicial proceedings of another. 



APPENDIX 579 

Sec. 6. Fugitives from justice from one State who shall be found in Appendix 
another, shall be delivered up on the application of the State from XIV 
which they fled. 

Sec. 7. No new State shall be erected within the limits of another, 
or by the junction of two or more without the concurrent consent of the 
Legislatures of the United States and of the States concerned. The 
Legislature of the United States may admit new States into the Union. 

Sec. 8. The United States are hereby declared to be bound to guar- 
antee to each State a republican form of government, and to protect 
each State as well against domestic violence as foreign invasion. 

Sec. 9. All treaties, contracts, and engagements of the United States 
of America, under the Articles of Confederation and Perpetual Union, 
shall have equal validity under this Constitution. 

Sec. 10. No State shall enter into a treaty, alliance, or contract with 
another, or with a foreign power without the consent of the United 
States. 

Sec. II. The members of the Legislature of the United States, and 
of each State, and all officers, executive and judicial, of the one & of the 
other, shall take an oath or affirmation to support the Constitution of 
the United States. 

Sec. 12. This Constitution may receive such alterations and amend- 
ments as may be proposed by the Legislature of the United States, with 
the concurrence of two thirds of the members of both Houses and ratified 
by the Legislatures of, or by conventions of deputies chosen by the 
people in, two thirds of the States composing the Union. 

ARTICLE X 

This Constitution shall be submitted to the consideration of Conven- 
tions in the several States, respectively, under the direction of their 
respective Legislatures. Each Convention which shall ratify the same, 
shall appoint the first Representatives and Senators from such State 
according to the rule prescribed in the section of the arti- 
cle. The Representatives so appointed shall continue in office for one 
year only. Each Convention so ratifying shall give notice thereof to the 
Congress of the United States, transmitting at the same time a list of the 
Representatives and Senators chosen. When the Constitution shall 
have been duly ratified. Congress shall give notice of a day and place 
for the meeting of the Senators and Representatives from the several 
States; and when these, or a majority of them, shall have assembled 
according to such notice, they shall by joint ballot, by plurality of votes, 
elect a President of the United States ; and the Constitution thus organ- 
ized shall be carried into effect. 



XV 

THE NEW JERSEY PLAN INTRODUCED BY 
PATERSON ON JUNE 15 

Appendix i . Resolved, That the Articles of Confederation ought to be so revised, 
XV corrected and enlarged, as to render the federal Constitution adequate 

to the exigencies of government, and the preservation of the Union, 

2. Resolved, That, in addition to the powers vested in the United 
States in Congress by the present existing Articles of Confederation, 
they be authorized to pass acts for raising a revenue, by levying a duty 
or duties on all goods or merchandises of foreign growth or manufacture, 
imported into any part of the United States; by stamps on paper, vel- 
lum, or parchment; and by a postage on all letters or packages passing 
through the general post-office; — to be applied to such federal pur- 
poses as they shall deem proper and expedient: to make rules and regu- 
lations for the collection thereof; and the same, from time to time, to 
alter and amend in such manner as they shall think proper: to pass acts 
for the regulation of trade and commerce, as well with foreign nations 
as with each other; — provided that all punishments, fines, forfeitures, 
and penalties, to be incurred for contravening such acts, rules, and 
regulations, shall be adjudged by the common-law judiciaries of the 
state in which any offence contrary to the true intent and meaning of 
such acts, rules, and regulations, shall have been committed or perpe- 
trated, with liberty of commencing in the first instance all suits and 
prosecutions for that purpose in the superior common-law judiciary in 
such state; subject, nevertheless, for the correction of all errors, both 
in law and fact, in rendering judgment, to an appeal to the judiciary of 
the United States 

3. Resolved, That whenever requisitions shall be necessary, instead 
of the rule for making requisitions mentioned in the Articles of Confed- 
eration, the United States in Congress be authorized to make such 
requisitions in proportion to the whole number of white and other free 
citizens and inhabitants, of every age, sex, and condition, including 
those bound to servitude for a term of years, and three fifths of all other 
persons not comprehended in the foregoing description, except Indians 
not paying taxes ; that, if such requisitions be not complied with in the 
time specified therein, to direct the collection thereof in the non-com- 
plying states, and for that purpose to devise and pass acts directing and 
authorizing the same ; — provided, that none of the powers hereby 
vested in the United States in Congress shall be exercised without the 

consent of at least states; and in that proportion, if the number 

of confederated states should hereafter be increased or diminished. 



APPENDIX 581 

4. Resolved, That the United States in Congress be authorized to Appendix 

elect a federal executive, to consist of persons; to continue in XV 

office for the term of years ; to receive punctually, at stated times, 

a fixed compensation for their services, in which no increase nor dimi- 
nution shall be made so as to affect the persons composing the executive 
at the time of such increase or diminution ; to be paid out of the federal 
treasury; to be incapable of holding any other office or appointment 

during their time of service, and for years thereafter; to be 

ineligible a second time, and removable by Congress, on application by 
a majority of the executives of the several states: that the executive, 
besides their general authority to execute the federal acts, ought to 
appoint all federal officers not otherwise provided for, and to direct all 
military operations; — provided, that none of the persons composing 
the federal executive shall, on any occasion, take command of any troops, 
so as personally to conduct any military enterprise, as general, or in any 
other capacity. 

5. Resolved, That a federal judiciary be established, to consist of a 
supreme tribunal, the judges of which to be appointed by the executive, 
and to hold their offices during good behaviour; to receive punctually, 
at stated times, a fixed compensation for their services, in which no 
increase nor diminution shall be made so as to affect the persons actu- 
ally in office at the time of such increase or diminution. That the judi- 
ciary so established shall have authority to hear and determine, in the 
first instance, on all impeachments of federal officers, and, by way of 
appeal, in the dernier ressort, in all cases touching the rights of ambassa- 
dors ; in all cases of captures from an enemy ; in all cases of piracies and 
felonies on the high seas ; in all cases in which foreigners may be inter- 
ested ; in the construction of any treaty or treaties, or which may arise 
on any of the acts for the regulation of trade, or the collection of the 
federal revenue: that none of the judiciary shall, during the time they 
remain in office, be capable of receiving or holding any other office or 
appointment during their term of service, or for thereafter. 

6. Resolved, That all acts of the United States in Congress, made by 
virtue and in pursuance of the powers hereby, and by the Articles of 
Confederation, vested in them, and all treaties made and ratified under 
the authority of the United States, shall be the supreme law of the 
respective states, so far forth as those acts or treaties shall relate to the 
said states or their citizens; and that the judiciary of the several states 
shall be bound thereby in their decisions, any thing in the respective 
laws of the individual states to the contrary notwithstanding ; and that 
if any state, or any body of men in any state, shall oppose or prevent 
the carrying into execution such acts or treaties, the federal executive 
shall be authorized to call forth the power of the confederated states, 
or so much thereof as may be necessary, to enforce and compel an 
obedience to such acts, or an observance of such treaties. 

7. Resolved, That provision be made for the admission of new states 
into the Union. 



582 APPENDIX 

Appendix 8. Resolved, That the rule for naturalization ought to be the same in 
XV every state. 

9. Resolved, That a citizen of one state, committing an offence in 
another state of the Union, shall be deemed guilty of the same offence 
as if it had been committed by a citizen of the state in which the offence 
was committed. 



XVI 

THE TWENTY-THREE RESOLUTIONS REFERRED 
TO THE COMMITTEE OF DETAIL JULY 26 

1. Resolved, That the government of the United States ought to con- Appendix 
sist of a supreme legislative, judiciary, and executive. XVI 

2. Resolved, That the legislature consist of two branches. 

3. Resolved, That the members of the first branch of the legislature 
ought to be elected by the people of the several states for the term of 
two years ; to be paid out of the public treasury ; to receive an adequate 
compensation for their services ; to be of the age of twenty -five years at 
least; to be ineligible to, and incapable of holding, any office under the 
authority of the United States (except those peculiarly belonging to the 
functions of the first branch) during the term of service of the first 
branch. 

4. Resolved, That the members of the second branch of the legislature 
of the United States ought to be chosen by the individual legislatures; 
to be of the age of thirty years at least; to hold their offices for six years, 
one third to go out biennially; to receive a compensation for the devo- 
tion of their time to the public service; to be ineligible to, and incapable 
of holding, any office under the authority of the United States (except 
those peculiarly belonging to the functions of the second branch) during 
the term for which they are elected, and for one year thereafter. 

5. Resolved, That each branch ought to possess the right of originat- 
ing acts. 

6. Resolved, That the national legislature ought to possess the legis- 
lative rights vested in Congress by the Confederation; and, moreover, 
to legislate in all cases for the general interests of the Union, and also 
in those to which the states are separately incompetent, or in which the 
harmony of the United States may be interrupted by the exercise of 
individual legislation. 

7. Resolved, That the legislative acts of the United States, made by 
virtue and in pursuance of the Articles of Union, and all treaties made 
and ratified under the authority of the United States, shall be the 
supreme law of the respective states, as far as those acts or treaties shall 
relate to the said states, or their citizens and inhabitants; and that the 
judiciaries of the several states shall be bound thereby in their decisions, 
anything in the respective laws of the individual states to the contrary 
notwithstanding. 

8. Resolved, That, in the general formation of the legislature of the 
United States, the first branch thereof shall consist of sixty-five mem- 
bers; of which number, 



584 APPENDIX 

Appendix New Hampshire shall send 3; Massachusetts, 8; Rhode Island, i; 
XVI Connecticut, 5; New York, 6; New Jersey, 4; Pennsylvania, 8; Dela- 

ware, I ; Maryland, 6; Virginia, 10; North Carolina, 5; South Carolina, 
5; Georgia, 3. 

But, as the present situation of the states may probably alter in the 
number of their inhabitants, the legislature of the United States shall be 
authorized, from time to time, to apportion the number of representa- 
tives; and in case any of the states shall hereafter be divided, or en- 
larged by addition of territory, or any two or more states united, or any 
new states created within the limits of the United States, the legislature 
of the United States shall possess authority to regulate the number of 
representatives, in any of the foregoing cases, upon the principle of their 
number of inhabitants, according to the provisions hereafter mentioned, 
namely — Provided always, that representation ought to be propor- 
tioned to direct taxation. And, in order to ascertain the alteration in 
the direct taxation which may be required from time to time, by the 
changes in the relative circumstances of the states, — 

9. Resolved, That a census be taken within six years from the first 
meeting of the legislature of the United States, and once within the 
term of every ten years afterwards, of all the inhabitants of the United 
States, in the manner and according to the ratio recommended by Con- 
gress in their resolution of the i8th of April, 1783; and that the legis- 
lature of the United States shall proportion the direct taxation accord- 
ingly. 

10. Resolved, That all bills for raising or appropriating money, and 
for fixing the salaries of the officers of the government of the United 
States, shall originate in the first branch of the legislature of the United 
States, and shall not be altered or amended by the second branch ; and 
that no money shall be drawn from the public treasury but in pursu- 
ance of appropriations to be originated by the first branch. 

11. Resolved, That, in the second branch of the legislature of the 
United States, each state shall have an equal vote. 

12. Resolved, That a national executive be instituted, to consist of a 
single person; to be chosen by the national legislature for the term of 
seven years; to be ineligible a second time; with power to carry into 
execution the national laws ; to appoint to offices in cases not otherwise 
provided for; to be removable on impeachment, and conviction of mal- 
practice or neglect of duty; to receive a fixed compensation for the de- 
votion of his time to the public service, to be paid out of the public 
treasury. 

13. Resolved, That the national executive shall have a right to nega- 
tive any legislative act; which shall not be afterwards passed, unless by 
two thirds part of each branch of the national legislature. 

14. Resolved, That a national judiciary be established, to consist of 
one supreme tribunal, the judges of which shall be appointed by the 
second branch of the national legislature; to hold their offices during 
good behaviour; to receive punctually, at stated times, a fixed compensa- 
tion for their services, in which no diminution shall be made so as to 
affect the persons actually in office at the time of such diminution. 



APPENDIX 585 

15. Resolved, That the national legislature be empowered to appoint Appendix 
inferior tribunals. XVI 

16. Resolved, That the jurisdiction of the national judiciary shall 
extend to cases arising under laws passed by the general legislature, and 
to such other questions as involve the national peace and harmony. 

17. Resolved, That provision ought to be made for the admission of 
states lawfully arising wdthin the limits of the United States, whether 
from a voluntary junction of government and territory, or otherwise, 
with the consent of a number of voices in the national legislature less 
than the whole. 

18. Resolved, That a republican form of government shall be guaran- 
teed to each state ; and that each state shall be protected against foreign 
and domestic violence. 

19. Resolved, That provision ought to be made for the amendment 
of the Articles of Union, whensoever it shall seem necessary. 

20. Resolved, That the legislative, executive, and judiciary powers, 
within the several states, and of the national government, ought to be 
bound, by oath, to support the Articles of Union. 

21. Resolved, That the amendments which shall be oflfered to the 
Confederation by the Convention ought, at a proper time or times, 
after the approbation of Congress, to be submitted to an assembly, or 
assemblies, of representatives, recommended by the several legislatures, 
to be expressly chosen by the people to consider and decide thereon. 

22. Resolved, That the representation in the second branch of the 
legislature of the United States shall consist of two members from each 
state, who shall vote per capita. 

23. Resolved, That it be an instruction to the committee to whom were 
referred the proceedings of the Convention for the establishment of a 
national government, to receive a clause, or clauses, requiring certain 
qualifications of property and citizenship in the United States for the 
executive, the judiciary, and the members of both branches of the 
legislature of the United States.^ 

^ With the above Resolutions 29th of May, and by Mr. Paterson 
were referred the propositions of- on the 15th of June, 
fered by Mr. C. Pinckney on the 



XVII 

DRAFT OF CONSTITUTION REPORTED BY THE 
COMMITTEE OF DETAIL ON AUGUST 6 

Appendix We, the people of the states of New Hampshire, Massachusetts, 
XVII Rhode Island and Providence Plantations, Connecticut, New York, 
New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North 
Carolina, South Carolina, and Georgia, do ordain, declare, and es- 
tablish, the following Constitution for the government of ourselves 
and our posterity : — 

Article I. The style of the government shall be, " The United States 
of America." 

Art. II. The government shall consist of supreme legislative, 
executive, and judicial powers. 

Art. III. The legislative power shall be vested in a Congress, to 
consist of two separate and distinct bodies of men, a House of Repre- 
sentatives and a Senate; each of which shall in all cases have a negative 
on the other. The legislature shall meet on the first Monday in Decem- 
ber in every year. 

Art. IV, Sect. i. The members of the House of Representatives 
shall be chosen, every second year, by the people of the several states 
comprehended within this Union. The qualifications of the electors 
shall be the same, from time to time, as those of the electors, in the 
several states, of the most numerous branch of their own legislatures. 

Sect. 2. Every member of the House of Representatives shall be of 
the age of twenty-five years at least; shall have been a citizen in the 
United States for at least three years before his election ; and shall be, 
at the time of his election, a resident of the state in which he shall 
be chosen. 

Sect. 3. The House of Representatives shall, at its first formation, 
and until the number of citizens and inhabitants shall be taken in the 
manner hereinafter described, consist of sixty-five members, of whom 
three shall be chosen in New Hampshire, eight in Massachusetts, one 
in Rhode Island and Providence Plantations, five in Connecticut, six 
in New York, four in New Jersey, eight in Pennsylvania, one in Dela- 
ware, six in Maryland, ten in Virginia, five in North Carolina, five in 
South Carolina, and three in Georgia. 

Sect. 4. As the proportions of numbers in different states will alter 
from time to time; as some of the states may hereafter be divided; as 
others may be enlarged by addition of territory; as two or more states 
may be united; as new states will be erected within the limits of the 
United States, — the legislature shall, in each of these cases, regulate 



APPENDIX 587 

the number of representatives by the number of inhabitants, accord- Appendix 
ing to the provisions hereinafter made, at the rate of one for every XVII 
forty thousand. 

Sect. 5. All bills for raising or appropriating money, and for fixing 
the salaries of the officers of government, shall originate in the House 
of Representatives, and shall not be altered or amended by the Senate. 
No money shall be drawn from the public treasury but in pursuance of 
appropriations that shall originate in the House of Representatives. 

Sect. 6. The House of Representatives shall have the sole power of 
impeachment. It shall choose its Speaker and other officers. 

Sect. 7. Vacancies in the House of Representatives shall be sup- 
plied by writs of election from the executive authority of the state in the 
representation from which they shall happen. 

Art. V, Sect. i. The Senate of the United States shall be chosen by 
the legislatures of the sevei'al states. Each legislature shall choose two 
members. Vacancies may be supplied by the executive until the next 
meeting of the legislature. Each member shall have one vote. 

Sect. 2. The senators shall be chosen for six years; but immediately 
after the first election, they shall be divided, by lot, into three classes, 
as nearly as may be, numbered one, two, and three. The seats of the 
members of the first class shall be vacated at the expiration of the 
second year; of the second class at the expiration of the fourth year; of 
the third class at the expiration of the sixth year; so that a third part 
of the members may be chosen every second year. 

Sect. 3. Every member of the Senate shall be of the age of thirty 
years at least ; shall have been a citizen in the United States for at least 
four years before his election ; and shall be, at the time of his election, 
a resident of the state for which he shall be chosen. 

Sect. 4. The Senate shall choose its own President and other 
officers. 

Art. VI, Sect. i. The times, and places, and manner, of holding 
the elections of the members of each House, shall be prescribed by the 
legislature of each state; but their provisions concerning them may, 
at any time, be altered by the legislature of the United States. 

Sect. 2. The legislature of the United States shall have authority 
to establish such uniform qualifications of the members of each House, 
with regard to property, as to the said legislature shall seem expedient. 

Sect. 3. In each House a majority of the members shall constitute 
a quorum to do business; but a smaller number may adjourn from day 
to day. 

Sect. 4. Each House shall be the judge of the elections, returns, 
and qualifications, of its own members. 

Sect. 5. Freedom of speech and debate in the legislature shall not 
be impeached or questioned in any court or place out of the legisla- 
ture; and the members of each House shall, in all cases, except treason, 
felony, and breach of the peace, be privileged from arrest during their 
attendance at Congress, and in going to and returning from it. 

Sect. 6. Each House may determine the rules of its proceedings; 



588 APPENDIX 

Appendix may punish its members for disorderly behaviour; and may expel a 
XVII member. 

Sect. 7. The House of Representatives, and the Senate when it 
shall be acting in a legislative capacity, shall keep a journal of their pro- 
ceedings; and shall, from time to time, publish them; and the yeas and 
nays of the members of each House, on any question, shall, at the 
desire of one fifth part of the members present, be entered on the 
Journal. 

Sect. 8. Neither House, without the consent of the other, shall 
adjourn for more than three days, nor to any other place than that at 
which the two Houses are sitting. But this regulation shall not extend 

to the Senate when it shall exercise the powers mentioned in the 

Article. 

Sect. 9. The members of each House shall be ineligible to, and in- 
capable of holding, any office under the authority of the United States, 
during the time for which they shall respectively be elected; and the 
members of the Senate shall be ineligible to, and incapable of holding, 
any such office for one year afterwards. 

Sect. 10. The members of each House shall receive a compensa- 
tion for their services, to be ascertained and paid by the state in which 
they shall be chosen. 

Sect. ii. The enacting style of the laws of the United States shall 
be, "Be it enacted, and it is hereby enacted, by the House of Repre- 
sentatives, and by the Senate, of the United States, in Congress as- 
sembled." 

Sect. 12. Each House shall possess the right of originating bills, 
except in the cases before mentioned. 

Sect. 13. Every bill which shall have passed the House of Repre- 
sentatives and the Senate, shall, before it becomes a law, be presented 
to the President of the United States for his revision. If, upon such 
revision, he approve of it, he shall signify his approbation by signing it. 
But if, upon such revision, it shall appear to him improper for being 
passed into a law, he shall return it, together with his objections against 
it, to that House in which it shall have originated ; who shall enter the 
objections at large on their Journal, and proceed to reconsider the bill. 
But if, after such reconsideration, two thirds of that House shall, 
notwithstanding the objections of the President, agree to pass it, it 
shall, together with his objections, be sent to the other House, by which 
it shall likewise be reconsidered, and if approved by two thirds of the 
other House also, it shall become a law. But, in all such cases, the votes 
of both houses shall be determined by yeas and nays; and the names of 
the persons voting for or against the bill shall be entered on the Journal 
of each House respectively. If any bill shall not be returned by the 
President within seven days after it shall have been presented to him, 
it shall be a law, unless the legislature, by their adjournment, prevent 
its return, in which case it shall not be a law. 

Art. VII, Sect. i. The legislature of the United States shall have 
the power to lay and collect taxes, duties, imposts, and excises ; 



APPENDIX 589 

To regulate commerce with foreign nations, and among the several Appendix 
states; XVII 

To establish an uniform rule of naturalization throughout the United 
States; 

To coin money; 

To regulate the value of foreign coins; 

To fix the standard of weights and measures; 

To establish post-offices; 

To borrow money, and emit bills, on the credit of the United States; 

To appoint a treasurer by ballot'; 

To constitute tribimals inferior to the supreme court; 

To make rules concerning captures on land and water; 

To declare the law and punishment of piracies and felonies committed 
on the high seas, and the punishment of counterfeiting the coin of the 
United States, and of offences against the law of nations ; 

To subdue a rebellion in any state, on the application of its legislature; 

To make war; , 

To raise armies; 

To build and equifi fleets ; 

To call forth the aid of the militia, in order to execute the laws of 
the Union, enforce treaties, suppress insurrections, and repel invasions; 

And to make all laws that shall be necessary and proper for carrying 
into execution the foregoing powers, and all other powers vested by 
this Constitution in the government of the United States, or in any 
department or officer thereof. 

Sect. 2. Treason against the United States shall consist only in 
levying war against the United States, or any of them ; and in adhering 
to the enemies of the United States, or any of them. The legislature 
of the United States shall have power to declare the punishment of 
treason. No person shall be convicted of treason, unless on the testi- 
mony of two witnesses. No attainder of treason shall work corruption 
ofjblood, nor forfeiture, except during the life of the person attainted. 

Sect. 3. The proportions of direct taxation shall be regulated by 
the whole number of white and other free citizens and inhabitants of 
every age, sex, and condition, including those bound to servitude for 
a term of years, and three fifths of all other persons not comprehended 
in the foregoing description, (except Indians not paying taxes;) which 
number shall, within six years after the first meeting of the legislature, 
and within the term of every ten years afterwards, be taken in such 
a manner as the said legislature shall direct. 

Sect. 4. No tax or duty shall be laid by the legislature on articles 
exported from any state; nor on the migration or importation of such 
persons as the several states shall think proper to admit; nor shall 
such migration or importation be prohibited. 

Sect. 5. No capitation tax shall be laid, unless in proportion to the 
census hereinbefore directed to be taken. 

Sect. 6. No navigation act shall be passed without the assent of 
two thirds of the members present in each House. 



590 APPENDIX 

Appendix Sect. 7. The United States shall not grant any title of nobility. 
XVII Art. VIII. The acts of the legislature of the United States made in 

pursuance of this Constitution, and all treaties made under the au- 
thority of the United States, shall be the supreme law of the several 
states, and of their citizens and inhabitants; and the judges in the several 
states shall be bound thereby in their decisions, anything in the con- 
stitutions or laws of the several states to the contrary notwithstanding. 

Art. IX, Sect.' i. The Senate of the United States shall have 
power to make treaties, and to appoint ambassadors, and judges of the 
supreme court. 

Sect. 2. In all disputes and controversies now subsisting, or that 
may hereafter subsist, between two or more states, respecting juris- 
diction or territory, the Senate shall possess the following powers: — 
Whenever the legislature, or the executive authority, or lawful agent 
of any state, in controversy with another, shall, by memorial to the 
Senate, state the matter in question, and apply for a hearing, notice 
of such memorial and application shall be given, by order of the Senate, 
to the legislature, or the executive authority, of the other state in 
controversy. The Senate shall also assign a day for the appearance of 
the parties, by their agents, before that House. The agents shall be 
directed to appoint, by joint consent, commissioners or judges to con- 
stitute a court for hearing and determining the matter in question. 
But if the agents cannot agree, the Senate shall name three persons 
out of each of the several states; and from the list of such persons, each 
party shall alternately strike out one, until the number shall be re- 
duced to thirteen ; and from that number not less than seven, nor more 
than nine, names, as the Senate shall direct, shall, in their presence, be 
drawn out by lot; and the persons whose names shall be so drawn, or 
any five of them, shall be commissioners or judges to hear and finally 
determine the controversy; provided a majority of the judges who shall 
hear the cause agree in the determination. If either party shall neglect 
to attend at the day assigned, without showing sufficient reasons for 
not attending, or being present shall refuse to strike, the Senate shall 
proceed to nominate three persons out of each state, and the clerk 
of the Senate shall strike in behalf of the party absent or refusing. If 
any of the parties shall refuse to submit to the authority of such court, 
or shall not appear to prosecute or defend their claim or cause, the court 
shall nevertheless proceed to pronounce judgment. The judgment 
shall be final and conclusive. The proceedings shall be transmitted to 
the President of the Senate, and shall be lodged among the public re- 
cords, for the security of the parties concerned. Every commissioner 
shall, before he sit in judgment, take an oath, to be administered by 
one of the judges of the supreme or superior court of the state where the 
cause shall be tried, "well and truly to hear and determine the matter 
in question, according to the best of his judgment, without favour, 
affection, or hope of reward." 

Sect. 3. All controversies concerning lands claimed under different 
grants of two or more states, whose jurisdictions, as they respect such 



APPENDIX 591 

lands, shall have been decided or adjusted subsequently to such grants, Appendix 
or any of them, shall, on application to the Senate, be finally deter- XVII 
mined, as near as may be, in the same manner as is before prescribed 
for deciding controversies between different states. 

Art. X, Sect. i. The executive power of the. United States shall 
be vested in a single person. His style shall be, "The President of the 
United States of America," and his title shall be, "His Excellency." 
He shall be elected by ballot by the legislature. He shall hold his office 
during the term of seven years; but shall not be elected a second time. 

Sect. 2. He shall, from time to time, give information to the 
legislature of the state of the Union. He may recommend to their 
consideration such measures as he shall judge necessary and expedient. 
He may convene them on extraordinary occasions. In case of disagree- 
ment between the two Houses, with regard to the time of adjournment, 
he may adjourn them to such time as he thinks proper. He shall take 
care that the laws of the United States be duly and faithfully executed. 
He shall commission all the officers of the United States; and shall ap- 
point officers in'all cases not otherwise provided for by this Constitution. 
He shall receive ambassadors, and may correspond with the supreme 
executives of the several states. He shall have power to grant reprieves 
and pardons, but his pardon shall not be pleadable in bar of an im- 
peachment. He shall be commander-in-chief of the army and navy 
of the United States, and of the militia of the several states. He shall, 
at stated times, receive for his services a compensation, which shall 
neither be increased nor diminished during his continuance in office. 
Before he shall enter on the duties of his department, he shall take the 

following oath or affirmation, "I solemnly swear (or affirm) 

that I will faithfully execute the office of President of the United States 
of America." He shall be removed from his office on impeachment 
by the House of Representatives, and conviction, in the supreme court, 
of treason, bribery, or corruption. In case of his removal, as aforesaid, 
death, resignation, or disability to discharge the powers and duties of 
his office, the President of the Senate shall exercise those powers and 
duties until another President of the United States be chosen, or until 
the disability of the President be removed. 

Art. XI, Sect. i. The judicial power of the United States shall 
be vested in one supreme court, and in such inferior courts as shall, 
when necessary, from time to time, be constituted by the legislature 
of the United States. 

Sect. 2. The judges of the supreme court, and of the inferior courts, 
shall hold their offices during good behaviour. They shall, at stated 
times, receive for their services a compensation, which shall not be 
diminished during their continuance in office. 

Sect. 3. The jurisdiction of the supreme court shall extend to all 
cases arising under laws passed by the legislature of the United States; 
to all cases affecting ambassadors, other public ministers, and consuls; 
to the trial of impeachments of officers of the United States; to all cases 
of admiralty and maritime jurisdiction; to controversies between two 



592 APPENDIX 

Appendix or more states, (except such as shall regard territory or jurisdiction;) 
XVII between a state and citizens of another state; between citizens of dif- 

ferent states; and between a state or the citizens thereof, and foreign 
states, citizens or subjects. In cases of impeachment, cases affecting 
ambassadors, other public ministers and consuls, and those in which 
a state shall be party, this jurisdiction shall be original. In all the other 
cases before mentioned, it shall be appellate, with such exceptions, and 
under such regulations, as the legislature shall make. The legislature 
may assign any part of the jurisdiction above mentioned, (except the 
trial of the President of the United States,) in the manner and under 
the limitations which it shall think proper, to such inferior courts as it 
shall constitute from time to time. 

Sect. 4. The trial of all criminal offences (except in cases of impeach- 
ment) shall be in the state where they shall be committed; and shall 
be by jury. 

Sect. 5. Judgment, in cases of impeachment, shall not extend 
further than to removal from office, and disqualification to hold and 
enjoy any office of honour, trust, or profit, under the United States. 
But the party convicted shall nevertheless be liable and subject to 
indictment, trial, judgment, and punishment, according to law. 

Art. XII. No state shall coin money; nor grant letters of marque 
and reprisal; nor enter into any treaty, alliance, or confederation; nor 
grant any title of nobility. 

Art. XIII. No state, without the consent of the legislature of the 
United States, shall emit bills of credit, or make anything but specie 
a tender in payment of debts; nor lay imposts or duties on imports; 
nor keep troops or ships of war in time of peace; nor enter into any 
agreement or compact with another state, or with any foreign power; 
nor engage in any war, unless it shall be actually invaded by enemies, 
or the danger of invasion be so imminent as not to admit of a delay 
until the legislature of the United States can be consulted. 

Art. XIV. The citizens of each state shall be entitled to all privi- 
leges and immunities of citizens in the several states. 

Art. XV. Any person charged with treason, felony, or high mis- 
demeanor in any state, who shall flee from justice, and shall be found 
in any other state, shall, on demand of the executive power of the state 
from which he fled, be delivered up and removed to the state having 
jurisdiction of the offence. 

Art. XVI. Full faith shall be given in each state to the acts of the 
legislatures, and to the records and judicial proceedings of the courts 
and magistrates of every other state. 

Art. XVII. New states lawfully constituted or established within 
the limits of the United States may be admitted, by the legislature, 
into this government; but to such admission the consent of two thirds 
of the members present in each House shall be necessary. If a new state 
shall arise within the limits of any of the present states, the consent 
of the legislatures of such states shall be also necessary to its admission. 
If the admission be consented to, the new states shall be admitted on 



APPENDIX 593 

the same terms with the original states. But the legislature may make Appendix 
conditions with the new states concerning the public debt which shall XVII 
be then subsisting. 

Art. XVIII. The United States shall guaranty to each state a re- 
publican form of government; and shall protect each state against for- 
eign invasions, and, on the application of its legislature, against do- 
mestic violence. 

Art. XIX. On the application of the legislatures of two thirds of 
the states in the Union, for an amendment of this Constitution, the 
legislature of the United States shall call a convention for that purpose. 

Art. XX. The members of the legislatures, and the executive and 
judicial officers of the United States, and of the several states, shall be 
bound by oath to support this Constitution. 

Art. XXI. The ratification of the conventions of states 

shall be sufficient for organizing this Constitution. 

Art. XXII. This Constitution shall be laid before the United States 
in Congress assembled, for their approbation; and it is the opinion of 
this Convention, that it should be afterwards submitted to a conven- 
tion chosen in each state, under the recommendation of its legislature, 
in order to receive the ratification of such convention. 

Art. XXIII. To introduce this government, it is the opinion of 
this Convention, that each assenting convention should notify its as- 
sent and ratification to the United States in Congress assembled ; that 
Congress, after receiving the assent and ratification of the conventions 

of states, should appoint and publish a day, as early as may be, 

and appoint a place, for commencing proceedings under this Consti- 
tution; that, after such publication, the legislatures of the several 
states should elect members of the Senate and direct the election of 
members of the House of Representatives; and that the members 
of the legislature should meet at the time and place assigned by Con- 
gress, and should, as soon as may be after their meeting, choose the 
President of the United States, and proceed to execute this Constitu- 
tion. 



XVIII 

THE CONSTITUTION AS REPORTED BY THE COM- 
MITTEE ON STYLE ON SEPTEMBER 12 

Appendix We, the people of the United States, in order to form a more perfect 
XVIII union, to establish justice, insure domestic tranquillity, provide for 
the common defence, promote the general welfare, and secure the 
blessings of liberty to ourselves and our posterity, do ordain and es- 
tablish this Constitution for the United States of America. 

Art. I, Sect. i. All legislative powers herein granted shall be 
vested in a Congress of the United States, which shall consist of a 
Senate and House of Representatives. 

Sect. 2. The House of Representatives shall be composed of mem- 
bers chosen every second year by the people of the several states, and 
the electors in each state shall have the qualifications requisite for 
electors of the most numerous branch of the state legislature. 

No person shall be a representative who shall not have attained to 
the age of twenty-five years, and been seven years a citizen of the 
United States, and who shall not, when elected, be an inhabitant of 
that state in which he shall be chosen. 

Representatives and direct taxes shall be apportioned among the 
several states which may be included within this Union, according to 
their respective numbers, which shall be determined by adding to the 
whole number of free persons, including those bound to servitude 
for a term of years, and excluding Indians not taxed, three fifths of 
all other persons. The actual enumeration shall be made within three 
. years after the first meeting of the Congress of the United States, and 
within every subsequent term of ten years, in such manner as they shall 
by law direct. The number of representatives shall not exceed one for 
every forty thousand, but each state shall have at least one represent- 
ative; and until such enumeration shall be made, the state of New 
Hampshire shall be entitled to choose three, Massachusetts eight, 
Rhode Island and Providence Plantations one, Connecticut five, New 
York six. New Jersey four, Pennsylvania eight, Delaware one, Mary- 
land six, Virginia ten. North Carolina five. South Carolina five, and 
Georgia three. 

When vacancies happen in the representation from any state, the 
executive authority thereof shall issue writs of election to fill such va- 
cancies. 

The House of Representatives shall choose their Speaker and other 
officers; and they shall have the sole power of impeachment. 

Sect. 3. The Senate of the United States shall be composed of 



APPENDIX 



595 



two senators from each state, chosen by the legislature thereof, for Appendix 
six years; and each senator shall have one vote. XVIII 

Immediately after they shall be assembled in consequence of the 
first election, they shall be divided, as equally as may be, into three 
classes. The seats of the senators of the first class shall be vacated at 
the expiration of the second year; of the second class at the expiration 
of the fourth year; and of the third class at the expiration of the sixth 
year ; so that one third may be chosen every second year. And if va- 
cancies happen by resignation, or otherwise, during the recess of the 
legislature of any state, the executive thereof may make temporary 
appointments until the next meeting of the legislature. 

No person shall be a senator who shall not have attained to the age 
of thirty years, and been nine years a citizen of the United States, and 
who shall not, when elected, be an inhabitant of that state for which 
he shall be chosen. 

The Vice-President of the United States shall be, ex officio, President 
of the Senate, but shall have no vote, unless they be equally divided. 

The Senate shall choose their other officers, and also a President 
pro tempore, in the absence of the Vice-President, or when he shall 
exercise the office of the President of the United States. 

The Senate shall have the sole power to try all impeachments. 
When sitting for that purpose, they shall be on oath. When the Pre- 
sident of the United States is tried, the Chief Justice shall preside; 
and no person shall be convicted without the concurrence of two thirds 
of the members present. 

Judgment, in cases of impeachment, shall not extend further than to 
removal from office, and disqualification to hold and enjoy any office 
of honour, trust, or profit, under the United States; but the party 
convicted shall nevertheless be liable and subject to indictment, trial, 
judgment, and punishment, according to law. 

' Sect. 4. The times, places, and manner, of holding elections for 
senators and representatives, shall be prescribed in each state by the 
legislature thereof; but the Congress may at any time by law make or 
alter such regulations. 

The Congress shall assemble at least once in every year; and such 
meeting shall be on the first Monday in December, unless they shall 
by law appoint a different day. 

Sect. 5. Each house shall be the judge of the elections, returns, 
and qualifications, of its own members; and a majority of each shall 
constitute a quorum to do business; but a smaller number may adjourn 
from day to day, and may be authorized to compel the attendance of 
absent members, in such manner and under such penalties as each house 
may provide. 

Each house may determine the rules of its proceedings; punish its 
members for disorderly behaviour; and, with the concurrence of two 
thirds, expel a member. 

Each house shall keep a journal of its proceedings, and from time to 
time publish the same, excepting such parts as may, in their judgment, 



596 APPENDIX 

Appendix require secrecy; and the yeas and nays of the members of either house 
XVIII on any question shall, at the desire of one fifth of those present, be 
entered on the Journal. 

Neither house, during the session of Congress, shall, without con- 
sent of the other, adjourn for more than three days, nor to any other 
place than that in which the two houses shall be sitting. 

Sect. 6. The senators and representatives shall receive a compen- 
sation for their services, to be ascertained by law, and paid out of the 
treasury of the United States. They shall in all cases, except treason, 
felony, and breach of the peace, be privileged from arrest during their 
attendance at the session of their respective houses, and in going to 
and returning from the same; and for any speech or debate in either 
house, they shall not be questioned in any other place. 

No senator or representative shall, during the time for which he was 
elected, be appointed to any civil office, under the authority of the 
United States, which shall have been created, or the emoluments 
whereof shall have been increased, during such time; and no person 
holding any office under the United States shall be a member of either 
house during his continuance in office. 

Sect. 7. The enacting style of the laws shall be, "Be it enacted by 
the Senators and Representatives, in Congress assembled." 

All bills for raising revenue shall originate in the House of Repre- 
sentatives; but the Senate may propose or concur with amendments, 
as on other bills. 

Every bill which shall have passed the House of Representatives 
and the Senate, shall, before it become a law, be presented to the 
President of the United States. If he approve, he shall sign it; but if 
not, he shall return it, with his objections, to that house in which it 
shall have originated, who shall enter the objections at large on their 
Journal, and proceed to reconsider it. If, after such reconsideration, 
two thirds of that house shall agree to pass the bill, it shall be sent, to- 
gether with the objections, to the other house, by which it shall like- 
wise be reconsidered ; and if approved by two thirds of that house, it 
shall become a law. But in all such cases, the votes of both houses 
shall be decided by yeas and nays; and the names of the persons voting 
for and against the bill shall be entered on the Journal of each house 
respectively. If any bill shall not be returned by the President within 
ten days (Sundays excepted) after it shall have been presented to him, 
the same shall be a law, in like manner as if he had signed it, unless the 
Congress, by its adjournment, prevent its return; in which case it 
shall not be a law. 

Every order, resolution, or vote, to which the concurrence of the 
Senate and House of Representatives may be necessary, (except on 
the question of adjournment,) shall be presented to the President of the 
United States, and, before the same shall take effect, shall be approved 
by him, or, being disapproved by him, shall be repassed by three fourths 
of the Senate and House of Representatives, according to the rules and 
limitations prescribed in the case of a bill. 



APPENDIX 597 

Sect. 8. The Congress may, by joint ballot, appoint a treasurer. Appendix 

They shall have power to lay and collect taxes, duties, imposts, and XVIII 
excises; 

To pay the debts, and provide for the common defence and general 
welfare, of the United States; 

To borrow money on the credit of the United States ; 

To regulate commerce with foreign nations, among the several states, 
and with the Indian tribes; 

To establish a uniform rule of naturalization, and uniform laws on the 
subject of bankruptcies, throughout the United States ; 

To coin money, regulate the value thereof, and of foreign coin, and 
fix the standard of weights and measures; 

To provide for the punishment of counterfeiting the securities and 
current coin of the United States; 

To establish post-offices and post-roads; 

To promote the progress of science and useful arts, by securing, for 
limited times, to authors and inventors, the exclusive right to their re- 
spective writings and discoveries ; 

To constitute tribunals inferior to the Supreme Court; 

To define and punish piracies and felonies committed on the high 
seas, and offences against the law of nations; 

To declare war, grant letters of marque and reprisal, and make rules 
concerning captures on land and water; 

To raise and support armies, — but no appropriation of money to that 
use shall be for a longer term than two years; 

To provide and maintain a na\^; 

To make rules for the government and regulation of the land and 
naval forces; 

To provide for the calling forth the militia to execute the laws of the 
Union, suppress insurrections, and repel invasions; 

To provide for organizing, arming, and disciplining the militia, and 
for governing such part of them as may be employed in the [service of 
the] United States — reserving to the states, respectively, the appoint- 
ment of the officers, and the authority of training the militia, according 
to the discipline prescribed by Congress; 

To exercise exclusive legislation, in all cases whatsoever, over such 
district (not exceeding ten miles square) as may, by cession of particular 
states, and the acceptance of Congress, become the seat of government 
of the United States; and to exercise like authority over all places pur- 
chased by the consent of the legislature of the state in which the same 
shall be, for the erection of forts, magazines, arsenals, dock-yards, and 
other needful buildings; and. 

To make all laws which shall be necessary and proper for carrying into 
execution the foregoing powers, and all other powers vested by this 
Constitution in the government of the United States, or in any depart- 
ment or officer thereof. 

Sect. 9. The migration or importation of such persons as the several 
states, now existing, shall think proper to admit, shall not be prohibited 



598 APPENDIX 

Appendix by the Congress prior to the year one thousand eight hundred and eight ; 
XVIII but a tax or duty may be imposed on such importation, not exceeding 
ten dollars for each person. 

The privilege of the writ of habeas corpus shall not be suspended, un- 
less when, in cases of rebellion or invasion, the public safety may re- 
quire it. 

No bill of attainder shall be passed, or any ex post facto law. 

No capitation tax shall be laid, unless in proportion to the census 
hereinbefore directed to be taken. 

No tax or duty shall be laid on articles exported from any state. 

No money shall be drawn from the treasury, but in consequence of 
appropriations made by law. 

No title of nobility shall be granted by the United States. 

And no person holding any office of profit or trust under them, shall, 
without the consent of Congress, accept of any present, emolument, 
office, or title, of any kind whatever, from any king, prince, or foreign 
state. 

Sect. io. No state shall coin money, nor emit bills of credit, nor 
make anything but gold and silver coin a tender in payment of debts, 
nor pass any bill of attainder, nor ex post facto laws, nor laws altering or 
impairing the obligation of contracts; nor grant letters of marque and 
reprisal ; nor enter into any treaty, alliance, or confederation; nor grant 
any title of nobility. 

No state shall, without the consent of Congress, lay imposts or duties 
on imports or exports, nor with such consent, but to the use of the 
treasury of the United States; nor keep troops or ships of war in time of 
peace ; nor enter into any agreement or compact with another state, nor 
with any foreign power; nor engage in any war, unless it shall be actu- 
ally invaded by enemies, or the danger of invasion be so imminent as 
not to admit of delay until the Congress can be consulted. 

Art. II, Sect. i. The executive power shall be vested in a Pre- 
sident of the United States of America. He shall hold his office during 
the term of four years, and, together with the Vice-President, chosen 
for the same term, be elected in the following manner: — 

Each state shall appoint, in such manner as the legislature thereof 
may direct, a number of electors equal to the whole number of senators 
and representatives to which the state may be entitled in Congress; 
but no senator or representative shall be appointed an elector, nor any 
person holding an office of trust or profit under the United States. 

The electors shall meet in their respective states, and vote by ballot 
for two persons, of whom one, at least, shall not be an inhabitant of the 
same state with themselves. And they shall make a list of all the per- 
sons voted for, and of the number of votes for each ; which list they shall 
sign and certify, and transmit sealed to the seat of the general govern- 
ment, directed to the President of the Senate. The President of the 
Senate shall, in the presence of the Senate and House of Representatives, 
open all the certificates ; and the votes shall then be counted. The per- 
son having the greatest number of votes shall be the President, if such 



APPENDIX 599 

number be a majority of the whole number of electors appointed ; and Appendix 
if there be more than one who have such majority, and have an equal XVIII 
number of votes, then the House of Representatives shall immediately 
choose by ballot one of them for President; and if no person have a 
majority, then from the five highest on the list the said House shall, in 
like manner, choose the President. But in choosing the President, the 
votes shall be taken by states, and not per capita, the representation 
from each state having one vote. A quorum for this purpose shall con- 
sist of a member or members from two thirds of the states ; and a ma- 
jority of all the states shall be necessary to a choice. In every case, after 
the choice of the President by the representatives, the person having the 
greatest number of votes of the electors shall be the Vice-President. 
But if there should remain two or more who have equal votes, the Sen- 
ate shall choose from them, by ballot, the Vice-President. 

The Congress may determine the time of choosing the electors, and 
the time in which they shall give their votes ; but the election shall be 
on the same day throughout the United States. 

No person except a natural-bom citizen, or a citizen of the United 
States at the time of the adoption of this Constitution, shall be eligible 
to the office of President; neither shall any person be eligible to that 
office who shall not have attained to the age of thirty-five years, and 
been fourteen years a resident within the United States. 

In case of the removal of the President from office, or of his death, 
resignation, or inability to discharge the powers and duties of the said 
office, the same shall devolve on the Vice-President ; and the Congress 
may by law provide for the case of removal, death, resignation, or in- 
ability, both of the President and Vice-President, declaring what officer 
shall then act as President; and such officer shall act accordingly, until 
the disability be removed, or the period for choosing another President 
arrive. 

The President shall, at stated times, receive a fixed compensation for 
his services, which shall neither be increased nor diminished during the 
period for which he shall have been elected. 

Before he enter on the execution of his office, he shall take the fol- 
lowing oath or affirmation: " I do solemnly swear (or affirm) that I will 
faithfully execute the office of President of the United States, and will, 
to the best of my judgment and power, preserve, protect, and defend the 
Constitution of the United States." 

Sect. 2. The President shall be commander-in-chief of the army and 
navy of the United States, and of the militia of the several states, when 
called into the actual service of the United States. 

He may require the opinion, in writing, of the principal officer in each 
of the executive departments, upon any subject relating to the duties 
of their respective offices. And he shall have power to grant reprieves 
and pardons for offences against the United States, except in cases of 
impeachment. 

He shall have power, by and with the advice and consent of the Sen- 
ate, to make treaties, provided two thirds of the senators present con- 



600 APPENDIX 

Appendix cur; and he shall nominate, and by and with the advice and consent of 

XVIII the Senate, shall appoint, ambassadors, other public ministers, and 

consuls, judges of the Supreme Court, and all other officers of the 

United States, whose appointments are not herein otherwise provided 

for. 

The President shall have power to fill up all vacancies that may 
happen during the recess of the Senate, by granting commissions, 
which shall expire at the end of the next session. 

Sect. 3. He shall, from time to time, give to the Congress informa- 
tion of the state of the Union, and recommend to their consideration such 
measures as he shall judge necessary and expedient. He may, on extra- 
ordinary occasions, convene both houses, or either of them ; and in case 
of disagreement between them with respect to the time of adjournment, 
he may adjourn them to such time as he shall think proper. He shall 
receive ambassadors and other public ministers. He shall take care that 
the laws be faithfully executed ; and shall commission all the officers cA 
the United States. 

Sect. 4. The President, Vice-President, and all civil officers of the 
United States, shall be removed from office on impeachment for, and 
conviction of, treason, bribery, or other high crimes and misdemeanors. 

Art. hi. Sect. i. The judicial power of the United States, both in 
law and equity, shall be vested in one Supreme Court, and in such 
inferior courts as the Congress may, from time to time, ordain and 
establish. The judges, both of the Supreme and inferior courts, shall 
hold their offices during good behaviour, and shall, at stated times, 
receive for their services a compensation, which shall not be diminished 
during their continuance in office. 

Sect. 2. The judicial power shall extend to all cases, both in law and 
equity, arising under this Constitution, the laws of the United States, 
and treaties made, or which shall be made, under their authority; to all 
cases affecting ambassadors, other public ministers, and consuls ; to all 
cases of admiralty and maritime jurisdiction; to controversies to which 
the United States shall be a party; to controversies between two or 
more states; between a state and citizens of another state; between 
citizens of different states; between citizens of the same state claiming 
lands under grants of different states ; or between a state, or the citizens 
thereof, and foreign states, citizens, or subjects. 

In cases affecting ambassadors, other public ministers, and consuls, 
and in those in which a state shall be a party, the Supreme Court shall 
have original jurisdiction. In all other cases before mentioned, the 
Supreme Court shall have appellate jurisdiction, both as to law and 
fact, — with such exceptions, and under such regulations, as the Con- 
gress shall make. 

The trial of all crimes, except in cases of impeachment, shall be by 
jury ; and such trial shall be held in the state where the said crime shall 
have been committed ; but when not committed within any state, the 
trial shall be at such place or places as the Congress may by law have 
directed. 



APPENDIX 60 1 

Sect. 3. Treason against the United States shall consist only in Appendix 
levying war against them, or in adhering to their enemies, giving them XVIII 
aid and comfort. No person shall be convicted of treason, unless on the 
testimony of two witnesses to the same overt act, or on confession in 
open court. 

The Congress shall have power to declare the punishment of treason ; 
but no attainder of treason shall work corruption of blood, nor forfeiture, 
except during the life of the person attainted. 

Art. IV, Sect. i. Full faith and credit shall be given, in each state, 
to the public acts, records, and judicial proceedings, of every other state. 
And the Congress may, by general laws, prescribe the manner in which 
such acts, records, and proceedings, shall be proved, and the effect 
thereof. 

Sect. 2. The citizens of each state shall be entitled to all privileges 
and immunities of citizens in the several states. 

A person charged in any state with treason, felony, or other crime, 
who shall flee from justice, and be found in another state, shall, on de- 
mand of the executive authority of the state from which he fled, be 
delivered up, and removed to the state having jurisdiction of the crime. 

No person legally held to service or labour in one state, escaping into 
another, shall, in consequence of regulations subsisting therein, be dis- 
charged from such service or labour, but shall be delivered up, on claim 
of the party to whom such service or labour may be due. 

Sect. 3. New states may be admitted by the Congress into this 
Union; but no new state shall be formed or erected within the jurisdic- 
diction of any other state; nor any state be formed by the junction of 
two or more states, or parts of states, without the consent of the legis- 
latures of the states concerned, as well as of the Congress. 

The Congress shall have power to dispose of and make all needful 
rules and regulations respecting the territory or other property belong- 
ing to the United States; and nothing in this Constitution shall be so 
construed as to prejudice any claim of the United States, or of any 
particular state. 

Sect. 4. The United States shall guaranty to every state in this 
Union a republican form of government, and shall protect each of them 
against invasion, and, on application of the legislature or executive, 
against domestic violence. 

Art. V. The Congress, whenever two thirds of both houses shall 
deem necessary, or on the application of two thirds of the legislatures 
of the several states, shall propose amendments to this Constitution, 
which shall be valid, to all intents and purposes, as part thereof, when 
the same shall have been ratified by three fourths, at least, of the legis- 
latures of the several states, or by conventions in three fourths thereof, 
as the one or the other mode of ratification may be proposed by the 
Congress; provided, that no amendment which may be made prior to 

the year 1 808 shall in any manner affect the and Sections 

of Article . 

Art. VI. All debts contracted, and engagements entered into, before 



602 APPENDIX 

Appendix the adoption of this Constitution, shall be as valid against the United 
XVIII States under this Constitution as under the Confederation. 

This Constitution, and the laws of the United States which shall 
be made in pursuance thereof, and all treaties made, or which shall be 
made, under the authority of the United States, shall be the supreme 
law of the land; and the judges in every state shall be bound thereby, 
anything in the Constitution or laws of any state to the contrary not- 
withstanding. 

The senators and representatives before mentioned, and the members 
of the several state legislatures, and all executive and judicial officers, 
both of the United States and of the several states, shall be bound, by 
oath or affirmation, to support this Constitution; but no religious test 
shall ever be required as a qualification to any office of public trust under 
the United States. 

Art. VII. The ratification of the conventions of nine states shall be 
sufficient for the establishment of this Constitution between the states 
so ratifying the same. 

In a "letter" accompanying their Report, the Committee on Style say: 
"In our deliberations on this subject, we kept steadily in our view that 
which appeared to us the greatest interest of every true American, the con- 
solidation of our union, in which is involved our property, felicity, safety, 
perhaps our national existence. This important consideration, seriously 
and deeply impressed on our minds, led each State in the Convention to be 
less rigid in points of inferior magnitude, than might have been otherwise 
expected. And thus the Constitution which we now present is the result of 
a spirit of amity and of that mutual deference and concession, which the 
peculiarity of our political situation rendered indispensable." Madison 
Papers, iii, 1561. 



XIX 

PELATIAH WEBSTER'S DEFENCE 

OF THE NEW CONSTITUTION, PUBLISHED OCTOBER 12, I787, IN 
REPLY TO AN ATTACK MADE UPON IT BY SIXTEEN MEMBERS 
OF THE ASSEMBLY OF PENNSYLVANIA IN AN ADDRESS DATED 
SEPTEMBER 29, 1 787 

Remarks on the Address of Sixteen Members of the Assembly of Pennsylvania 
to their constittients, dated September 29, 1787. With some strictures on their 
objections to the constitution recommended by the late Federal Convention.^ 
(First published in Philadelphia, October 12, 1787.) 

I AM now to consider the objections of our sixteen members to the Appendix 
New Constitution itself, which is the most important part that lies on me. XIX 

I. Their first objection is, that the government proposed will be too 
expensive. I answer that if the appointments of offices are not more, and 
the compensations or emoluments of office not greater, than is necessary, 
the expense will be by no means burdensome, and thus must be left 
to the prudence of Congress ; for I know of no way to control supreme 
powers from extravagance in this respect. Doubtless many instances 
may be produced of many needless offices being created, and many in- 
ferior officers, who receive far greater emoluments of office, than the first 
President of the State. 

1 The pamphlet was first pub- cern anybody out of that State, I 

lished by Eleazer Oswald at the have here omitted my remarks on 

Coffee House. It was subsequently all of it, but their objections to the 

republished by Webster, in a some- new constitution itself, which being 

what abridged form, in his Essays. of general consequence to the States, 

He then appended this note: "When inasmuch as that constitution (with 

the new constitution was laid before a few amendments since adopted) 

the Assembly of Pennsylvania, in is the same which now exists in full 

September, 1787, a resolution passed establishment through the Union, I 

the House (forty-three against nine- therefore here insert, I say, their 

teen) to call a convention to consider objections and my remarks on them, 

it, etc. Sixteen of the dissentients and leave out all the rest as matter 

published an address to their constitu- of local concern at that time, but like 

ents, dated September 27, 1787, stat- to be little interesting to the public 

ing their conduct, and assigning the in general at this or any future 

reasons of it; but as there was very time." It is the revised version that 

little in all this affair that reflected is reproduced here. The original 

muchhonor on the dissenting members text as published by Oswald may be 

or on the State to which they belonged, found in the Library of Congress and 

and nothing that could affect or con- in the Boston Athenaeum. 



604 APPENDIX 

Appendix 2. Their next objection is against a legislature consisting of three 
XIX branches.^ This is so far from an objection, that I consider it as an ad- 

vantage. The most weighty and important afTairs of the Union must 
be transacted in Congress; the most essential counsels must be there 
decided, which must all go thro' several discussions in three different 
chambers (all equally competent to the subject and equally governed 
by the same motives and interests, viz., the good of the great Common- 
wealth, and the approbation of the people) before any decision can be 
made ; and when disputes are very high, different discussions are neces- 
sary, because they afford time for all parties to cool and reconsider. 

This appears to me to be a very safe way and a very likely method to 
prevent any sudden and undigested resolutions from passing; and tho' 
it may delay or even destroy, a good bill, will hardly admit the passing 
of a bad one, which is by far the worst evil of the two. But if all this can- 
not stop the course of a bad bill, the negative of the President will at 
least give it further embarrassment, will furnish all the new light which 
a most serious discussion in a third House can give, and will make a new 
discussion necessary in each of the other two, where every member will 
have an opportunity to revise his opinion, to correct his arguments, and 
bring his judgment to the greatest maturity possible: if all this cannot 
keep the public decision within the bounds of wisdom, fitness, right, and 
convenience, it will be hard to find any efforts of human wisdom that 
can do it. 

I believe it would be difficult to find a man in the Union, who would 
not readily consent to have Congress vested with all the vast powers 
proposed by the New Constitution if he could be sure that those powers 
would be exercised with wisdom, justice, and propriety, and not be abused ; 
and I do not see that greater precautions and guards against abuses can 
well be devised, or more effectual methods used to throw every degree 
of light on every subject of debate, or more powerful motives to a reason- 
able and honest decision can be set before the minds of Congress, than 
are here proposed. 

And if this is the best that can be obtained, it ought in all prudence 
to be adopted till better appears, rather than to be rejected merely be- 
cause it is human, not perfect, and may be abused. At any rate I think 
it very plain that our chance of a right decision in a Congress of three 
branches, is much greater than in one single chamber; but however all 
this may be, I cannot see the least tendency in a Legislature of three 
branches to increase the burdens or taxes of the people. I think it very 
evident that any proposition of extravagant expense would be checked 
and embarrassed in such an assembly more than in a single House. 

Farther, the two Houses being by their election taken from the body 
of the States, and being themselves principal inhabitants, will naturally 
have the interest of the Commonwealth sincerely at heart, their princi- 
ple must be the same, their differences must (if any) in the mode of pur- 

^ In speaking of "a legislature the President and his advisers as "a 
consisting of three branches," he third House." 
includes, as he explains a little later, 



APPENDIX 



605 



suing it, or arise from local attachments; I say the great interest in their 
country, and the esteem, confidence, and approbation of their fellow- 
citizens, must be strong governing principles in both Houses, as well as 
in the President himself.^ 

3. Another objection is, that the Constitution proposed will annihi- 
late the state- governments, or reduce them to mere corporations. I take it 
that this objection is thrown out (merely invidice causa) without the 
least ground for it; for I do not find one article of the Constitution pro- 
posed, which vests Congress, or any of their officers or courts, with a 
power to interfere in the least in the internal police or government of any 
one state, when the interests of some other state, or strangers, or the Union 
in general, are not concerned; and in such cases it is absolutely and mani- 
festly necessary that Congress should have a controlling power, other- 
wise there would be no end of controversies and injuries between different 
states, nor any safety for individuals, nor any possibility of supporting the 
Union with any tolerable degree of honour, strength or security, 

4. Another objection is against the power of taxation vested in Congress, 
But I answer, this is absolutely necessary and unavoidable, from the 
necessity of the case; I know it is a tender point, a vast power, and a 
terrible engine of oppression and tyranny when wantonly, injudiciously, 
or wickedly used, but must he admitted; for it is impossible to support the 
Union, or indeed any government, without expense — the Congress are 
the proper judges of that expense, the amount of it, and the best means 
of supplying it ; the safety of the states absolutely requires that this power 
be lodged somewhere, and no other body can have the least pretensions 
to it; and no part of the resources of the states can, with any safety be 
exempt, when the exigencies of the Union or government require their 
utmost exertion. 

The stronger we make our government, the greater protection it can afford 
us, and the greater will our safety be under it. It is easy enough here to 
harangue on the arts of a court to create occasions for money, or the 
unbounded extravagance with which they can spend it ; but all this not- 
withstanding, we must take our courts as we do our wives, for better or 
for worse. We hope the best of an American Congress, but if they dis- 
appoint us, we cannot help it; it is in vain to try to form any plan of 
avoiding the frailties of human nature. — Would any man choose a lame 
horse lest a sound one should run away with him? or will any man prefer 
a small tent to live in, before a large house, which may fall down and 
crush him in its ruins? No man has any right to find fault with this 
article, till he can substitute a better in its room. 

The sixteen Members attempt to aggravate the horrors of this de- 
vouring power, by suggesting the rigid severity with which Congress, 
with their faithful soldiers, will exact and collect the taxes. This picture, 
stripped of its black drapery, amounts to just this, viz., that whatever 

^ "Vide a Dissertation on the February 16, 1783, where the sub- 
Political Union and Constitution of ject is taken up at large." Taken 
the Thirteen United States, pub- from the text of the original pam- 
lished by a Citizen of Philadelphia, phlet. 



Appendix 
XIX 



6o6 APPENDIX 

Appendix taxes are laid will be collected, without exception, from every person 
XIX charged with them, which must look disagreeable, I suppose, to people 

who, by one shift or another, have avoided paying taxes all their lives. 
But it is a plain truth, and will be obvious to anybody who duly 
considers it, that nothing can be more ruinous to a state, or oppressive 
to individuals, than a partial and dilatory collection of taxes, especially 
where the tax is an impost or excise, because the man who avoids the 
tax, can undersell, and consequently ruin, him who pays it, i. e., smug- 
gling ruins the fair trader, and a remedy of this mischief, I cannot sup- 
pose, will be deemed by our people in general such a very awful judgment, 
as the sixteen members would make us believe their constituents will 
consider it to be. 

5. They object, that the liberty of the press is not asserted in the Con- 
stitution. I answer, neither are any of the ten commandments, but I do 
not think that it follows that it was the design of the Convention to 
sacrifice either the one or the other to contempt, or to leave them void of 
protection and effectual support. 

6. It is objected farther, that the Constitution contains no declaration 
of rights. I answer, this is not true : the Constitution contains a declara- 
tion of many rights, and very important ones, e. g., that people shall be 
obliged to fulfil their contracts, and not avoid them by tenders of anything 
less than the value stipulated; that no ex post facto laws shall be made, 
etc., but it was no part of the business of their appointment to make 
a code of laws; it was sufficient to fix the Constitution right, and that would 
pave the way for the most effectual security of the rights of the sub- 
ject. 

7. They further object, that no provision is made against a standing 
army in time of peace. I answer, that a standing army, i. e., regular 
troops, are often necessary in time of peace, to prevent a war, to guard 
against sudden invasions, for garrison duty, to quell mobs and riots, as 
guards to Congress and perhaps other courts, etc., as military schools 
to keep up the knowledge and habits of military discipline and exer- 
cise, etc., and as the power of raising troops is rightfully and without 
objection vested in Congress, so they are the properest and best judges of 
the number requisite, and the occasion, time, and manner of employing 
them; if they are not wanted on military duty they may be employed 
in making public roads, fortifications, or any other public works: they 
need not be an useless burden to the States: and for all this the prudence 
of Congress must be trusted, and nobody can have a right to object to 
this, till they can point out some way of doing better. 

8. Another objection is, that the New Constitution abolishes trial by 
jury in civil causes. I answer, I do not see one word in the Constitution 
which, by any candid construction, can support even the remotest 
suspicion that this ever entered into the heart of one Member of the 
Convention: I therefore set down the suggestion for sheer malice, and 
so dismiss it. 

9. Another objection is, that the federal judiciary is so constructed as 
to destroy the judiciaries of the several states, and that the appellate juris- 



APPENDIX 607 

diction, with respect to law and fact, is unnecessary. I answer, both the Appendix 
original and appellate jurisdiction of the federal judiciary are mani- XIX 
festly necessary, where the cause of action affects the citizens of different 
states, the general interest of the Union ; or strangers (and to cases of these 
descriptions only does the jurisdiction of the federal judiciary extend) ; 
I say, these jurisdictions of the federal judiciary are manifestly necessary 
for the reasons just now given under the third objection. 

I do not see how they can avoid trying any issue joined before them, 
whether the thing to be decided is law or fact; but I think no doubt 
can be made, that if the issue joined is fact, it must be tried by jury. 

10. They object, that the election of Delegates for the House of Repre- 
sentatives is for two years, and of Senators, for six years. I think this a 
manifest advantage, rather than an objection. Very great inconveniences 
must necessarily arise from a too frequent change of the Members of 
large legislative or executive bodies, while the revision of every past 
transaction must be taken up, explained, and discussed anew for the 
information of the new Members; where the settled rules of the House 
are little understood by them, etc., all which ought to be avoided, if it 
can be with safety. 

Further, it is plain that any man who serves in such bodies is better 
qualified the second year than he could be the first, because experience 
adds qualifications for every business, etc. The only objection is, that 
long continuance affords danger of corruption, but for this the Con- 
stitution provides a remedy by impeachment and expulsion, which will 
be sufificient restraint, unless a majority of the House and Senate should 
become corrupt, which is not easily presumable : in fine, there is a certain 
mean between too long and too short continuances of Members in Con- 
gress, and I cannot see but it is judiciously fixed by the Convention. 

Upon the whole matter, I think the sixteen Members have employed 
an address-writer of great dexterity, who has given us a strong sample 
of ingenious malignity and ill nature — a masterpiece of high colouring 
in the scare-crow way ; in his account of the conduct of the sixteen Mem- 
bers, by an unexpected openness and candour, he avows facts which he 
certainly cannot expect to justify, or even hope that their constituents 
will patronize or even approve, but he seems to lose all candour when he 
deals in sentiments; when he comes to point out the nature and operation 
of the New Constitution, he appears to mistake the spirit and true prin- 
ciples of it very much ; or, which is worse, takes pleasure in showing it 
in the worst light he can paint it in. 

I however agree with him in this, "that this is the time for considera- 
tion and minute examination'' ', and, I think, the great subject, when 
viewed seriously without passion or prejudice, will hear, and brighten 
under, the severest examination of the rational enquirer. If the provisions 
of the law or Constitution do not exceed the occasions, if the remedies are 
not extended beyond the mischiefs, the government cannot be justly 
charged with severity; on the other hand, if the provisions are not ade- 
quate to the occasions, and the remedies not equal to the mischiefs, the 
government must be too lax, and not sufficiently operative to give the 



6o8 APPENDIX 

Appendix necessary security to the subject: to form a right judgment, we must 

XIX compare these two things well together, and not suffer our minds to 

dwell on one of them alone, without considering it in connection with the 

other; by this means we shall easily see that the one makes the other 

necessary. 

Were we to view only the gaols and dungeons, the gallows and pil- 
lories, the chains and wheelbarrows, of any State, we might be induced to 
think the government severe; but when we turn our attention to the 
murders and parricides, the robberies and burglaries, the piracies and 
thefts, which merit these punishments, our idea of cruelty vanishes at 
once, and we admire the justice, and perhaps clemency of that govern- 
ment, which before shocked us as too severe. So when we fix our atten- 
tion only on the superlative authority and energetic force vested in 
Congress, and our federal executive powers by the New Constitution, 
we may at first sight be induced to think that we yield more of the 
sovereignty of the States and of personal liberty, than is requisite to main- 
tain the federal government; but when, on the other hand, we consider 
with full survey the vast supports which the Union requires, and the 
immense consequence of that Union to us all, we shall probably soon be 
convinced that the powers aforesaid, extensive as they are, are not 
greater than is necessary for our benefit: for, 

1. No laws of any State, which do not carry in them a force which ex- 
tends to their effectual and final execution, can afford a certain and suf- 
ficient security to the subject; for, 

2. Laws of any kind, which fail of execution, are worse than none, 
because they weaken the government, expose it to contempt, destroy 
the confidence of all men, both subjects and strangers, in it, and dis- 
appoint all men who have confided in it. 

In fine, our union can never be supported without definite and ef- 
fectual laws, which are co-extensive with their occasions, and which 
are supported by authorities and powers which can give them execu- 
tion with energy; if admitting such powers into our Constitution can 
be called a sacrifice, it is a sacrifice to safety, and the only question is, 
whether our Union or federal government is worth this sacrifice. 

Our Union, I say, under the protection of which every individual 
rests secure against foreign and domestic insult and oppression; but 
without it we can have no security against invasions, insults, and op- 
pressions oi foreign powers, or against the inroads and wars of one State 
on another, or even against insurrections and rebellions arising within 
particular States, by which our wealth and strength, as well as ease, 
comfort, and safety, will be devoured by enemies growing out of our 
own bowels. 

It is our Union alone which can give us respectability abroad in the 
eyes of foreign nations, and secure to us all the advantages both of 
trade and safety, which can be derived from treaties with them. 

The Thirteen States, all united and well cemented together, are a 
strong, rich, and formidable body not of stationary, matured power, 
but increasing every day in riches, strength and numbers. 



APPENDIX 609 

Thus circumstanced, we can demand the attention and respect of all Appendix 
foreign nations, but they will give us both in exact proportion to the XIX 
solidity of our union: for if they observe our union to be lax, from in- 
sufficient principles of cement in our Constitution, or mutinies and in- 
surrections of our own people (which are the direct consequence of an 
insufficient cement of union) ; I say, when foreign nations see either of 
these, they will immediately abate of their attention and respect to us, 
and confidence in us. 

And as it appears to me, that the New Constitution does not vest 
Congress with more or greater powers than are necessary to support 
this important union, I wish it may be admitted in the most cordial 
and unanimous manner by all the States. 

It is a human composition, and may have errors which future ex- 
perience will enable us to discover and correct; but I think it is very 
plain, if it has faults, that the address-writer of the sixteen members 
has not been able to find them ; for he has all along either hunted down 
phantoms of error, that have no real existence, or, which is worse, tar- 
nished real excellencies into blemishes. 

I have dwelt the longer on these remarks of this writer, because I 
observe that all the scribblers in our papers against the New Constitu- 
tion, have taken their cue principally from him; all their lucubrations 
contain little more than his ideas dressed out in a great variety of forms; 
one of which colours so high as to make the New Constitution strongly 
resemble the Turkish government {vide Gazetteer, of the loth instant) 
which, I think, comes about as near the truth as any of the rest, and 
brings to my mind a sentiment in polemical divinity, which I ha^'e 
somewhere read, that there were once great disputes and different 
opinions among drones about the mark which was set on Cain, when 
one of them very gravely thought it was born fully grown out on his 
forehead. It is probable he could not think of a worse mark than that. 

On the whole matter, there is no aid to extravagancies of the human 
fancy which are commonly dictated by poignant feelings, disordered 
passions, or affecting interests; but I could wish my fellow-citizens, 
in the matter of vast importance before us, would divest themselves of 
bias, passion, and little personal or local interests, and consider the 
great subject with that dignity of reason, and independence of senti- 
ment, which national interests ever require. 

I have here given my sentiments with the most unbiased freedom, 
and hope they will be received with the most candid attention and 
unbiased discussion by the State in which I live, and in which I expect 
to leave my children. 

I will conclude with one observation, which I take to be very capi- 
tal, viz., that the distresses and oppressions, both of nations and in- 
dividuals, often arise from the powers of government being too limited 
in their principle, too indeterminate in their definition, or too lax in their 
execution, and, of course the safety of the citizens depends much on 
full and definite powers of government, and an effectual execution of 
them. 



XX 

THE CONSTITUTION OF THE UNITED STATES 
AND ITS AMENDMENTS, WITH NOTES AND 
ANNOTATIONS TO DATE ^ 

Appendix We the People of the United States, in Order to form a more perfect 
XX Union, establish Justice, insure domestic Tranquility, provide for the 

common defence, promote the general Welfare, and secure the Bless- 
ings of Liberty to ourselves and our Posterity, do ordain and establish 
this Constitution for the United States of America. 

Chisholm v. Georgia, 2 Dall. 419; McCuUoch v. State of Maryland 
et al., 4 Wh. 316; Brown et al. v. Maryland, 12 Wh. 419; Barron v. 
The Mayor and City Council of Baltimore, 7 Pet. 243; Lane County 
V. Oregon, 7 Wall. 71; Texas v. White et al., 7 Wall. 700; Claflin v. 
Houseman, assignee, 93 U. S. 130; Williams ». Bruffy, 96 U. S. 176; 
Tennessee v. Davis, 100 U. S. 257; Langford v. United States, loi 
U. S. 341; United States v. Jones, 109 U. S. 513; Fort Leavenworth 
Railroad Co. v. Lowe, 114 U. S. 525; The Chinese Exclusion Case, 130 
U. S, 581; Geofroy v. Riggs, 133 U. S. 258; In re Neagle, 135 U. S. i; 
In re Ross, 140 U. S. 453; Logan v. United States, 144 U. S. 263; Las- 
celles V. Georgia, 148 U. S. 537; Fong Yue Ting v. United States, 149 
U. S. 698; In re Tyler, 149 U. S. 164; United States v. E. C. Knight 
Co., 156 U. S. i; Mattox v. United States, 156 U. S. 237; In re Quarles 
and Butler, 158 U. S. 532; In re Debs, Petitioner, 158 U. S. 564; Ward 
V. Race Horse, 163 U. S. 504; De Lima v. Bidwell, 182 U. S. i; Prout 
V. Starr, 188 U. S. 537; Jacobson v. Massachusetts, 197 U. S. 11; South 
Carolina v. United States, 199 U. S. 437; Ellis v. United States, 206 
U. S. 246; Muller v. Oregon, 208 U. S. 412. 

ARTICLE I 

Section i. All legislative Powers herein granted shall be vested in a 
Congress of the United States, which shall consist of a Senate and House 
of Representatives. 

Hayburn's Case (notes), 2 Dall. 409; Field ». Clark, 143 U. S. 649; 
Union Bridge Co. v. United States, 204 U. S. 364; United States 
V. Heinszen, 206 U. S. 370; St. Louis and Iron Mountain Railway v. 
Taylor, 210 U. S. 281. 

Section 2. The House of Representatives shall be composed of 
Members chosen every second Year by the People of the several States, 

^ I am indebted to my learned able assistance in preparing the table 
friend, James H. Dorman, for valu- of cases. 



APPENDIX 6ll 

and the Electors in each State shall have the Qualifications requisite for ApPEhfcix 
Electors of the most numerous Branch of the State Legislature. XX 

In re Green, 134 U. S. 377; Wiley v. Sinkler, 179 U. S. 58; Ex parte 
Yarbrough, no U. S. 651. 

No Person shall be a Representative who shall not have attained to 
the Age of twenty-five Years, and been seven Years a Citizen of the 
United States, and who shall not, when elected, be an Inhabitant of that 
State in which he shall be chosen. 

[Representatives and direct Taxes shall be apportioned among the 
several States which may be included within this Union, according to 
their respective Numbers, which shall be determined by adding to the 
whole Number of free Persons, including those bound to Service for a 
Teiin of Years, and excluding Indians not taxed, three fifths of all other 
Persons.] ^ The actual Enumeration shall be made within three Years 
after the first Meeting of the Congress of the United States, and within 
every subsequent Term of ten Years, in such Manner as they shall by 
Law direct. The Number of Representatives shall not exceed one for 
every thirty Thousand, but each State shall have at Least one Repre- 
sentative; and until such enumeration shall be made, the State of New 
Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode- 
Island and Providence Plantations one, Connecticut five. New- York six, 
New Jersey four, Pennsylvania eight, Delaware one, Maryland six, 
Virginia ten. North Carolina five. South Carolina five, and Georgia 
three. 

Dred Scott v. Sandford, 19 Howard, 393; Veazie Bank v. Fenno, 8 
Wall. 533; Scholey v. Rew, 23 Wall. 331; De Treville v. Smalls, 98 
U. S. 517; Gibbons v. District of Columbia, 116 U. S. 404; Pollock v. 
Farmers' Loan & Trust Co. (Income Tax Case), 157 U. S. 429; Pol- 
lock V. Farmers' Loan & Trust Co. (Rehearing), 158 U. S. 601 ; Thomas 
V. United States, 192 U. S. 363. 

When vacancies happen in the Representation from any State, the 
Executive Authority thereof shall issue Writs of Election to fill such 
Vacancies. 

The House of Representatives shall chuse their Speaker and other 
Officers; and shall have the sole Power of Impeachment. 

Section 3. The Senate of the United States shall be composed of 
two Senators from each State, chosen by the Legislature thereof, for six 
Years; and each Senator shall have one Vote. 

Immediately after they shall be assembled in Consequence of the first 
Election, they shall be divided as equally as may be into three Classes. 
The Seats of the Senators of the first Class shall be vacated at the Ex- 
piration of the second Year,?of the second Class at the Expiration of the 
fourth Year, and of the third Class at the Expiration of the sixth Year, 
so that one third may be chosen every second Year; and if Vacancies 

^ The clause included in brackets is amended by the Fourteenth 
Amendment, second section. 



6l2 APPENDIX 

Appendix happen by Resignation, or otherwise, during the Recess of the Legisla- 
XX ture of any State, the Executive thereof may make temporary Appoint- 

ments until the next Meeting of the Legislature, which shall then fill 
such Vacancies. 

No Person shall be a Senator who shall not have attained to the Age 
of thirty Years, and been nine Years a Citizen of the United States, and 
who shall not, when elected, be an Inhabitant of that State for which he 
shall be chosen. 

The Vice President of the United States shall be President of the 
Senate, but shall have no Vote, unless they be equally divided. 

The Senate shall chuse their other Officers, and also a President 
pro tempore, in the absence of the Vice-President, or when he shall 
exercise the Office of President of the United States. 

The Senate shall have the sole Power to try all Impeachments. 
When sitting for that Purpose, they shall be on Oath or Affirmation. 
When the President of the United States is tried, the Chief Justice shall 
preside : And no Person shall be convicted without the Concurrence of 
two thirds of the Members present. 

Judgment in Cases of Impeachment shall not extend further than to 
removal from Office, and disqualification to hold and enjoy any Office 
of honor, Trust, or Profit under the United States: but the Party con- 
victed shall nevertheless be liable and subject to Indictment, Trial, 
Judgment and Punishment, according to Law. 

Section 4. The Times, Places and Manner of holding Elections for 
Senators and Representatives, shall be prescribed in each State by the 
Legislature thereof; but the Congress may at any time by Law make 
or alter such Regulations, except as to the Places of chusing Senators. 

Ex parte Siebold, 100 U. S. 371; Ex parte Clarke, 100 U. S. 399; Ex 
parte Yarbrough, no U. S. 651; United States v. Waddell et al., 112 
U. S. 76; In re Coy, 127 U. S. 731. 

The Congress shall assemble at least once in every Year, and such 
Meeting shall be on the first Monday in December, unless they shall 
by Law appoint a different Day. 

Section 5. Each House shall be the Judge of the Elections, Returns 
and Qualifications of its own Members, and a Majority of each shall 
constitute a Quorum to do Business; but a smaller Number may ad- 
journ from day to day, and may be authorized to compel the Attend- 
ance of absent Members, in such Manner, and under such Penalties 
as each House may provide. 

In re Loney, 134 U. S. 372; United States v. Ballin, 144 U. S. I. 

Each House may determine the Rules of its Proceedings, punish its 
Members for disorderly Behaviour, and, with the Concurrence of two 
thirds, expel a Member. 

Anderson v. Dunn, 6 Wh. 204; Kilbourn v. Thompson, 103 U. S. 
168; United States v. Ballin, 144 U. S. i; In re Chapman, 166 U. S. 661. 



APPENDIX 613 

Each House shall keep a Journal of its Proceedings, and from time Appendix 
to time publish the same, excepting such Parts as may in their Judg- XX 

ment require Secrecy; and the Yeas and Nays of the Members of either 
House on any question shall, at the Desire of one fifth of those Present, 
be entered on the Journal. 

Field V. Clark, 143 U. S. 649; United States v. BalUn, 144 U. S. i; 
Twin City Bank v. Nebeker, 167 U. S. 196; Wilkes County v. Coler, 
180 U. S. 506. 

Neither House, during the Session of Congress, shall, without the 
Consent of the other, adjourn for more than three days, nor to any 
other Place than that in which the two Houses shall be sitting. 

Section 6. The Senators and Representatives shall receive a Com- 
pensation for their Services, to be ascertained by Law, and paid out 
of the Treasury of the United States. They shall in all Cases, except 
Treason, Felony and Breach of the Peace, be privileged from Arrest dur- 
ing their Attendance at the Session of their respective Houses, and in 
going to and returning from the same; and for any Speech or Debate 
in either House, they shall not be questioned in any other Place. 

Coxe V. M'Clenachan, 3 Dall. 478; Kilbourn v. Thompson, 103 U. S. 
168; Williamson v. United States, 207 U. S. 425. 

No Senator or Representative shall, during the Time for which he 
was elected, be appointed to any civil Office under the Authority of the 
United States, which shall have been created, or the Emoluments 
whereof shall have been encreased during such time; and no Person 
holding any Office under the United States, shall be a Member of 
either House during his Continuance in Office. 

Section 7. All Bills for raising Revenue shall originate in the 
House of Representatives; but the Senate may propose or concur with 
Amendments as on other Bills. 

Field V. Clark, 143 U. S. 649; Twin City Bank v. Nebeker, 167 
U. S. 196; Millard v. Roberts, 202 U. S. 429. 

Every Bill which shall have passed the House of Representatives and 
the Senate, shall, before it become a Law, be presented to the President 
of the United States; If he approve he shall sign it, but if not he shall 
return it, with his Objections to that House in which it shall have orig- 
inated, who shall enter the Objections at large on their Journal, and 
proceed to reconsider it. If after such Reconsideration two thirds of 
that House shall agree to pass the Bill, it shall be sent, together with 
the Objections, to the other House, by which it shall likewise be recon- 
sidered, and if approved by two thirds of that House, it shall become 
a Law. But in all such Cases the Votes of both Houses shall be deter- 
mined by Yeas and Nays, and the Names of the Persons voting for and 
against the Bill shall be entered on the Journal of each House respect- 
ively. If any Bill shall not be returned by the President within ten 
Days (Sundays excepted) after it shall have been presented to him, the 



6l4 APPENDIX 

Appendix Same shall be a Law, in like Manner as if he had signed it, unless the 
XX Congress by their Adjournment prevent its Return, in which Case it 

shall not be a Law. 

Field V. Clark, 143 U. S. 649; United States v. Ballin, 144 U. S. I; 
Twin City Bank v. Nebeker, 167 U. S. 196; La Abra Silver Mining 
Co. V. United States, 175 U. S. 423; Wilkes County v. Coler, 180 U. S. 
506. 

Every Order, Resolution, or Vote to which the Concurrence of the 
Senate and House of Representatives may be necessary (except on a 
question of Adjournment) shall be presented to the President of the 
United States; and before the Same shall take Effect, shall be approved 
by him, or being disapproved by him, shall be repassed by two thirds 
of the Senate and House of Representatives, according to the Rules 
and Limitations prescribed in the Case of a Bill. 

Field V. Clark, 143 U. S. 649; United States v. Ballin, 144 U. S. i; 
Fourteen Diamond Rings v. IJnited States, 183 U. S. 176. 

Section 8. The Congress shall have Power To lay and collect Taxes, 
Duties, Imposts and Excises, to pay the Debts and provide for the com- 
mon Defence and general Welfare of the United States; but all Duties, 
Imposts and Excises shall be uniform throughout the United States; 

Hylton V. United States, 3 Dall. 171; McCulloch v. State of Mary- 
land, 4 Wh. 316; Loughborough v. Blake, 5 Wh. 317; Osborn v. Bank of 
the United States, 9 Wh. 738 ; Weston et al. v. City Council of Charles- 
ton, 2 Pet. 449; Dobbins v. The Commissioners of Erie County, 
16 Pet. 435; License Cases, 5 How. 504; Cooley v. Board of Wardens 
of Port of Philadelphia et al., 12 How. 299; McGuire v. The Com- 
monwealth, 3 Wall. 387; Van Allen v. The Assessors, 3 Wall. 573; Brad- 
ley V. The People, 4 Wall. 459; License Tax Cases, 5 Wall. 462; Per- 
vear v. The Commonwealth, 5 Wall. 475; Woodruff v. Parham, 8 Wall. 
123; Hinson v. Lott, 8 Wall. 148; Veazie Bank v. Fenno, 8 Wall. 533; 
The Collector v. Day, 11 Wall. 113; United States v. Singer, 15 Wall. 
Ill; State Tax on Foreign-held Bonds, 15 Wall. 300; United States 
V. Railroad Company, 17 Wall. 322; Railroad Company v. Peniston, 
18 Wall. 5; Scholey v. Rew, 23 Wall. 331; Springer v. United States, 
102 U. S. 586; Legal Tender Case, no U. S. 421; California v. Central 
Pacific Railroad Co., 127 U. S. i; Ratterman v. Western Union Tele- 
graph Co., 127 U. S. 411; Leloup V. Port of Mobile, 127 U. S. 640; 
Field V. Clark, 143 U. S. 649; Pollock v. Farmers' Loan & Trust Co., 
157 U. S. 429; United States v. Realty Co., 163 U. S. 427; Nicol v. 
Ames, 173 U. S. 509; Knowlton v. Moore, 178 U. S. 41; De Lima v. 
Bidwell, 182 U. S. i; Dooley v. United States, 182 U. S. 222; Fourteen 
Diamond Rings v. United States, 183 U. S. 176; Felsenheld v. United 
States, 186 U.S. 126; Thomas r. United States, 192 U. S. 363; Binns 
V. United States, 194 U. S. 486; South Carolina v. United States, 199 
U. S. 437. 

To borrow money on the credit of the United States; 

McCulloch V. The State of Maryland, 4 Wh. 316; Weston et al. v. 
The City Council of Charleston, 2 Pet. 449; Bank of Commerce v. 



APPENDIX 615 

New York City, 2 Black, 620; Bank Tax Cases, 2 Wall. 200; The Banks Appendix 
V. The Mayor, 7 Wall. 16; Bank v. Supervisors, 7 Wall. 26; Hepburn XX 

V. Griswold, 8 Wall. 603; National Bank v. Commonwealth, 9 Wall. 
353; Parker v. Davis, 12 Wall. 457; Legal Tender Case, no U. S. 421; 
Home Insurance Company v. New York, 134 U. S. 594; Home Savings 
Bank v. Des Moines, 205 U. S. 503. 

To regulate Commerce with foreign Nations, and among the several 
States, and with the Indian Tribes; 

Gibbons v. Ogden, 9 Wh, i ; Brown et als. v. State of Maryland,i2 
Wh. 419; Wilson et al. v. Black Bird Creek Marsh Company, 2 Pet. 
245; Worcester v. The State of Georgia, 6 Pet. 515; City of New York, 
V. Miln, II Pet. 102; United States v. Coombs, 12 Pet. 72; Holmes v. 
Jennison et al., 14 Pet. 540; License Cases, 5 How. 504; Passenger 
Cases, 7 How. 283; Nathan v. Louisiana, 8 How. 73; Mager v. Grima 
et al., 8 How. 490; United States v. Marigold, 9 How. 560; Cowley v. 
Board of Wardens of Port of Philadelphia, 12 How. 299; The Propeller 
Genesee Chief et al. v. Fitzhugh et al., 12 How. 443; State of Pennsyl- 
vania V. The Wheeling Bridge Co., 13 How. 518; Veazie et al. v. Moore, 
14 How. 568; Smith v. State of Maryland, 18 How. 71; State of Penn- 
sylvania V. The Wheeling and Belmont Bridge Co. et al., 18 How. 421; 
Sinnot v. Davenport, 22 How. 227; Foster et al. v. Davenport et al., 
22 How. 244; Conway et al. v. Taylor's Ex., i Black 603; United States 
V. HoUiday, 3 Wall. 407; Gilman v. Philadelphia, 3 Wall. 713; The Pas- 
saic Bridges, 3 Wall. 782; Steamship Company v. Port Wardens, 6 
Wall. 31; Crandall v. State of Nevada, 6 Wall. 35; White's Bank v. 
Smith, 7 Wall. 646; Waring v. The Mayor, 8 Wall. 1 10; Paul v. Virginia, 
8 Wall. 168; Thomson v. Pacific Railroad, 9 Wall. 579; Downham et al. 
V. Alexandria Council, 10 Wall. 173; The Clinton Bridge, 10 Wall. 454; 
The Daniel Ball, 10 Wall. 557; Liverpool Insurance Company v. Massa- 
chusetts, 10 Wall. 566; The Montello, 11 Wall. 411; Ex parte McNiel, 
13 Wall. 236; State Freight Tax, 15 Wall. 232; State Tax on Railway 
Gross Receipts, 15 Wall. 284; Osborn v. Mobile, 16 Wall. 479; Railroad 
Company v. Fuller, 17 Wall. 560; Bartemeyer v. Iowa, 18 Wall. 129; 
The Delaware Railroad Tax, 18 Wall. 206; Peete v. Morgan, 19 Wall. 
581; Railroad Company v. Richmond, 19 Wall. 584; B. and O. Rail- 
road Company v. Maryland, 21 Wall. 456; The Lotta wanna, 21 Wall. 
558; Henderson et al. v. The Mayor of the City of New York, 92 
U. S. 259; Chy Lung v. Freeman et al., 92 U. S., 275; South Carolina 
V. Georgia et al., 93 U. S. 4; Sherlock et al. v. Ailing, adm., 93 U. S. 99; 
United States v. Forty-three Gallons of Whisky, etc., 93 U. S. 188; 
Foster v. Master and Wardens of the Port of New Orleans, 94 U. S. 
246; Railroad Co. v. Husen, 95 U. S. 465; Pensacola Tel. Co. v. W. U. 
Tel. Co., 96 U. S. i; Beer Co. v. Massachusetts, 97 U. S. 25; Cook v. 
Pennsylvania, 97 U. S. 566; Packet Co. v. St. Louis, 100 U. S. 423; 
Wilson V. McNamee, 102 U. S. 572; Moran i;. New Orleans, 112 U. S. 
69; Head Money Cases, 112 U. S. 580; Cooper Mfg. Co. v. Ferguson, 
113 U. S. 727; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196; 
Brown v. Houston, 114 U. S. 622; Walling v. Michigan, 116 U. S. 446; 
Pickard v. Pullman Southern Car Co., 117 U. S. 34; Tennessee v. Pull- 
man Southern Car Co., 117 U. S. 51; Spraigue v. Thompson, 118 U. S. 
90; Morgan v. Louisiana, 118 U. S. 455; Wabash, St. Louis and Pacific 



6l6 APPENDIX 

Appendix Ry- v. Illinois, ii8 U. S. 557; Huse v. Glover, 119 U. S. 543; Robbinsw. 

XX Shelby Co. Taxing Dist., 120 U. S. 489; Corson v. Maryland, 120 U, S, 

502; Barron v. Burnside, 121 U. S. 186; Fargo v. Michigan, 121 U. S. 
230; Ouachita Packet Co. v. Aiken, 121 U. S. 444; Phila. and Southern 
S. S. Co. V. Penna., 122 U. S. 326; W. U. Tel. Co. v. Pendleton, 122 U. S. 
347; Sands v. Manistee River Imp. Co., 123 U. S. 288; Smith v. 
Alabama, 124 U. S. 465; Willamette Iron Bridge Co. v. Hatch, 125 
U. S. i; Pemjjina Mine Co. v. Penna., 125 U. S. 181; Bowman v. 
Chicago Northwestern Rwy. Co., 125 U. S. 465; Western Union 
Tel. Co. V. Mass., 125 U. S. 530; California v. Central Pacific R. R. 
Co., 127 U. S. i; Leloup v. Port of Mobile, 127 U. S. 640; Kidd v. 
Pearson, 128 U. S. i; Asher v. Texas, 128 U. S. 129; Stoutenberg ». 
Hennick, 129 U. S. 141 ; Western Union Tel. Co. v. Alabama, 132 U. S. 
472; FrittsK. Palmer, 132 U. S. 282; Louisville, N. O., &c.. Railway r. 
Mississippi, 133 U. S. 587; Leisy v. Hardin, 135 U. S. 100; Lyng v. 
Michigan, 135 U. S. 161; Cherokee Nations. Kansas Railway Co., 135 
U. S. 641; McCall V. California, 136 U. S. 104; Norfolk & Western R. 
Rd. V. Pennsylvania, 136 U. S. 114; Minnesota v. Barber, 136 U. S. 
313; Texas & Pacific Ry. Co. v. Southern Pacific Co., 137 U. S. 48; 
Brimmer v. Rebman, 138 U. S. 78; Manchester v. Massachusetts, 
139 U. S. 240; In re Rahrer, 140 U. S. 545; Pullman Palace Car Co. 
V. Penna., 141 U. S. 18; Pullman Palace Car Co. v. Hayward, 141 
U. S. 36; Att'y-Gen. v. West'n Union Tel. Co., 141 U. S. 40; Crutcherr. 
Kentucky, 141 U. S. 47; Henderson Bridge Co. v. Henderson, 141 U. S. 
679; In re Garnett, 141 U. S. i; Maine v. Grand Trunk Ry. Co., 142 
U. S. 217; Nishimura Ekin v. U. S., 142 U. S. 651; Pacific Ex. Co. v. 
' Seibert, 142 U. S. 339 ; Horn Silver Mining Co. v. New York, 143 U. S. 
305; Chic. & Grand Trunk Ry. Co. v. Wellman, 143 U. S. 339; Budd v. 
N. Y., 143 U. S. 517; Ficklen v. Shelby Co. Taxing Dist., 145 U. S. i; 
Lehigh Valley R. Rd. v. Pennsylvania, 145 U. S. 192; Interstate Com- 
merce Comm'n v. B. & O. R. Rd., 145 U. S. 264; Brennan v. Titusville, 
153 U. S. 289; Brass v. Stoeser, 153 U. S. 391; Ashley v. Ryan, 153 
U. S. 436; Luxton V. N. River Bridge Co., 153 U. S. 529; Erie R. Rd. 
V. Pennsylvania, 153 U. S. 628; Postal Tel. Cable Co. v. Charleston, 153 
U. S. 692; Covington & Cinc'ti Bridge Co. v. Ky., 154 U. S. 204; Plum- 
ley V. Mass., 155 U. S. 461 ; Texas & Pacific Rwy. Co. v. Interstate Trans- 
fer Co., 155 U. S. 585; Hooper v. Calif., 155 U. S. 648; Postal Tel. Cable 
Co. V. Adams, 155 U. S. 688; U. S. v. E. C. Knight Co., 156 U. S. i; 
Emert v. Missouri, 156 U. S. 296; N. Y., L. E. & West'n v. Penna., 
158 U. S. 431 ; Pittsburgh & So. Coal Co. v. Bates, 156 U. S. 577; Pitts- 
burgh & So. Coal Co. V. La., 156 U. S. 590; Gulf, Colo. & S. F. Rwy. Co. 
V. Hefley, 158 U. S. 98; In re Debs, 158 U. S. 564; Geer v. Conn., 161 
U. S. 519; Western Union Telegraph Co. v. James, 162 U. S. 650; West- 
em Union Telegraph Co. v. Taggart, 163 U. S. i; Illinois Cent. R. R. 
Co., V. Illinois, 163 U. S. 142; Hennington v. Georgia, 163 U. S. 299; 
Osborne v. Florida, 164 U. S. 650; Scott v. Donald, 165 U. S. 58; Adams 
. Ex. Co. V. Ohio, 165 U. S. 194; New York, &c., R. R. Co. v. New York, 
165 U. S. 628; Gladson v. Minn., 166 U. S. 427; Chicago, &c., Ry. Co. 
V. Solan, 169 U. S. 133; Missouri, &c., Ry. Co. v. Haber, 169 U. S. 613; 
Richmond, &c., R. R. Co. v. Patterson, 169 U. S. 311; Rhodes v. Iowa, 
170 U. S. 412; Vance v. Vandercook, 170 U. S. 438; SchoUenberger v. 
Pa., 171 U. S. i; Collins v. N. H., 171 U. S. 30; Patapsco Guano Co. v. 
N. C, 171 U. S. 345; New York v. Roberts, 171 U. S. 658; Lake Shore, 



APPENDIX 617 

&c., Ry. Co. V. Ohio, 173 U. S. 285; Nicol v. Ames, 173 U. S. 509; Mis- Appendix 
souri, &c., Ry. Co. v. McCann, 174 U. S. 580; Addyston Pipe & Steel XX 

Co. V. U. S., 175 U. S. 211 ; Lindsay & Phelps Co. v. Mullen, 176 
U. S. 126; Williams v. Fears, 179 U. S. 270; Wisconsin, &c., R. R. Co. v. 
Jacobson, 179 U. S. 287; Chesapeake, &c., Ry. Co. v. Kentucky, 179 
U. S. 388; Scranton v. Wheeler, 179 U. S. 141; Reymann Brewing Co. 
V. Brister, 179 U. S. 445; W. W. Cargill Co. v. Minnesota, 180 U. S. 
452; Rasmussen». Idaho, 181 U. S. 198; Smith v. St. Louis & South- 
western Railroad Co., 181 U. S. 248; Capital City Dairy Co. v. Ohio, 
183 U. S. 238; Louisville & Nashville Railroad Co. v. Kentucky, 183 
U. S. 503; Nutting ». Massachusetts, 183 U. S. 553; McChord ». Louis- 
ville & Nashville Railroad Co., 183 U. S. 483; Louisville & Nashville 
Railroad Co. v. Eubank, 184 U. S. 27; Stockard v. Morgan, 185 U. S. 
27; Minneapohs & St. Louis R. R. Co. v. Minnesota, 186 U. S. 257; 
Reid V. Colorado, 187 U. S. 137; Western Union Tel. Co. v. New Hope, 
187 U. S. 419; Diamond Glue Co. 1;. United States Glue Co., 187 U. S. 
611; Louisville, etc., Ferry Co. v. Kentucky, 188 U. S. 385; United 
States V. Lynah, 188 U. S. 445; Cummings v. Chicago, 188 U. S. 410; 
The Roanoke, 189 U. S. 185; Montgomery v. Portland, 190 U. S. 89; 
Patterson v. Bark Eudora, 190 U. S. 169; Allen v. Pullman Co., 191 
U. S. 171 ; Pennsylvania R. R. Co. v. Knight, 192 U. S. 21 ; Postal Tele- 
graph Cable Co. v. Taylor, 192 U. S. 64; Grossman v. Lurman, 192 
U. S. 189; St. Clair County v. Interstate Transfer Co., 192 U. S. 454; 
Buttfield V. Stranahan, 192 U. S. 470; American Steel & Wire Co. v. 
Speed, 192 U. S. 500; Northern Securities Co. v. United States, 193 U. S. 
197; Montague & Co. v. Lowry, 193 U. S. 38; Field v. Barber Asphalt 
Co., 194 U. S. 618; Minnesota v. Northern Securities Co. 194 U. S. 48; 
Olsen^;. Smith, 195 U. S. 332; Western Union Telegraph Co. v. Penn- 
sylvania R. R., 195 U. S. 540; Central of Georgia Railway Co. v. Mur- 
phey, 196 U. S. 194; American Express Co. v. Iowa, 196 U. S. 133; Cook 
V. Marshall County, 196 U. S. 261; Matter of Heff (Indian), 197 U. S. 
488; Foppiano v. Speed, 199 U. S. 501; Houston & Texas Central Rail- 
road V. Mayes, 201 U.S. 321; McLean v. Denver & Rio Grande R. R., 
203 U. S. 38; Rearick v. Pennsylvania, 203 U. S. 507; Mississippi R. 
R. Comm. v. IlUnois Central R. R., 203 U. S. 335; Martin v. Pittsburg & 
Lake Erie R. R., 203 U. S. 284; Hatch v. Reardon, 204 U. S. 152; Wilson 
V. Shaw, 204 U. S. 24; Union Bridge Co. v. U. S., 204 U. S. 364; Lee v. 
New Jersey, 207 U. S. 67; Atlantic Coast Line v. Wharton, 207 U. S. 
328; Employers' Liability Cases, 207 U. S. 463; Dick v. U, S., 208 
U. S. 340; Darnell & Son v. Memphis, 208 U. S. 113; Adair v. U. S., 

208 U. S. 161; Burke v. Wells, 208 U. S. 14; General Oil Co. v. Grain, 

209 U. S. 211; Ware & Leland v. Mobile County, 209 U. S. 405; Asbell 
V. Kansas, 209 U. S. 251; Galveston, Harrisburg, etc.. Railway Co. v. 
Texas, 210 U. S. 217; United States ex rel. Atty. Gen. v. Delaware & H. 
Co., 213 U. S. 366; Oceanic Steam Nav. Co. v. Stranahan, 214 U. S. 320; 
International Mercantile Marine Co. v. Stranahan, 214 U. S. 344; Inter- 
state Com. Commission v. Illinois C. R. Co., 215 U. S. 452; Interstate 
Com. Commission v. Chicago & A. R. Co., 215 U. S. 479; Mononga- 
hela Bridge Co. v. United States, 216 U. S. 177. 

To establish an uniform Rule of Naturalization, and uniform Laws 
on the subject of Bankruptcies throughout the United States; 

Sturges V. Crowinshield, 4 Wh. 122; McMillan v. McNeil, 4 Wh. 



6l8 APPENDIX 

Appendix 209; Farmers' and Mechanics' Bank, Pennsylvania, v. Smith, 6 Wh. 

XX 131; Ogden v. Saunders, 12 Wh. 213; Boyle v. Zacharie and Turner, 

6 Pet. 348 ; Gassies v. Ballon, 6 Pet. 761 ; Beers et al. v. Haughton, 9 Pet. 
329; Suydam et al. v. Broadnax, 14 Pet. 67; Cook v. Moffat et al., 5 
How. 295; Dred Scott v. Sandford, 19 How. 393; Nishimura Ekiu v. 
The United States, 142 U. S. 651; Hanover National Bank v. Moyses, 
186 U. S. 181. 

To coin Money, regulate the Value thereof, and of foreign Coin, and 
fix the Standard of Weights and Measures; 

Briscoe v. The Bank of the Commonwealth of Kentucky, 11 Pet. 
257; Fox V. The State of Ohio, 5 How. 410; United States v. Marigold, 
9 How. 560. 

To provide for the Punishment of counterfeiting the Securities and 
current Coin of the United States; 

Fox V. The State of Ohio, 5 How. 410; United States v. Marigold, 
9 How. 560. 

To establish Post Offices and post Roads; 

State of Pennsylvania v. The Wheeling and Belmont Bridge Com- 
pany, 18 How. 421 ; Horner v. United States, 143 U. S. 207; In re Ra- 
pier, 143 U. S. no; In re Debs, 158 U. S. 564; Illinois Central Rail- 
road Co. V. Illinois, 163 U. S. 142; Gladson v. Minnesota, 166 U. S. 
427; Public Clearing House v. Coyne, 194 U. S, 497; Western Uniop 
Telegraph Co. v. Pennsylvania R. R. Co., 195 U. S. 540; Martin v 
Pittsburg & Lake Erie R. R., 203 U. S. 284. 

To promote the Progress of Science and useful Arts, by securing for 
limited Times to Authors and Inventors the exclusive Right to their 
respective Writings and Discoveries; 

Grant et al. v. Raymond, 6 Pet. 218; Wheaton et als. v. Peters et al., 
8 Pet. 591; Trade- mark Cases, 100 U. S. 82; Burrow Giles Litho- 
graphic Co. V. Sarony, in U. S. 53; United States v. Duell, 172 U. S. 
576; Bobbs-Merrill Co. v. Straus, 210 U. S. 339. 

To constitute Tribunals inferior to the supreme Court; 
To define and punish Piracies and Felonies committed on the high 
Seas, and Oflfenses against the Law of Nations; 

United States v. Palmer, 3 Wh. 610; United States v. Wiltberger, 5 
Wh. 76; United States v. Smith, 5 Wh. 153; United States v. Pirates, 
5 Wh. 184; United States v. Arjona, 120 U. S. 479. 

To declare War, grant Letters of Marque and Reprisal, and make 
Rules concerning Captures on Land and Water; 

"" Brown v. United States, 8 Cr. no; American Insurance Company 

et al. V. Canter (356 bales cotton), i Pet. 511 ; Mrs. Alexander's Cotton, 
2 Wall. 404; Miller v. United States, 11 Wall. 268; Tyler v. Defrees, il 
Wall. 331; Stewart v. Kahn, 11 Wall. 493; Hamilton v. Dillin, 21 Wall. 
73; Lamar, ex., v. Browne et al., 92 U. S. 187; Mayfield v. Richards, 
115 U. S. 137; The Chinese Exclusion Cases, 130 U. S. 581; Mormon 
Church V. United States, 136 U. S. i ; Nishimura Ekiu v. United States, 
142 U. S. 651. 



APPENDIX 619 

To raise and support Armies, but no Appropriation of Money to that Appendix 
Use shall be for a longer Term than two Years; XX 

Crandall v. State of Nevada, 6 Wall. 35 ; Nishimura Ekiu v. United 
States, 142 U. S. 651. 

To provide and maintain a Navy; 

United States v. Bevans, 3 Wh. 336; Dynes v. Hoover, 20 How. 65. 

To make Rules for the Government and Regulation of the land and 
naval Forces; 

To provide for calling forth the Militia to execute the Laws of the 
Union, suppress Insurrections and repel Invasions; 

Houston V. Moore, 5 Wh. i; Martin v. Mott, 12 Wh. 19; Luther v. 
Borden, 7 How. i; Crandall v. State of Nevada, 6 Wall. 35; Texas v. 
White, 7 Wall. 700. 

To provide for organizing, arming, and disciplining the Militia, and 
for governing such Part of them as may be employed in the Service of 
the United States, reserving to the States respectively, the Appoint- 
ment of the Officers, and the Authority of training the Militia according 
to the discipline prescribed by Congress; 

Houston V. Moore, 5 Wh. l; Martin v. Mott, 12 Wh. 19; Luther v. 
Borden, 7 How. i; Presser v. Illinois, 116 U. S. 252. 

To exercise exclusive Legislation in all Cases whatsoever, over such 
District (not exceeding ten Miles square) as may, by Cession of par- 
ticular States, and the Acceptance of Congress, become the Seat of the 
Government of the United States, and to exercise like Authority over all 
Places purchased by the Consent of the Legislature of the State in 
which the Same shall be, for the Erection of Forts, Magazines, Arsenals, 
dock- Yards, and other needful Buildings; — And 

Hepburn et al. v. Ellzey, 2 Cr. 444; Loughborough v. Blake, 5 Wh. 
317; Cohens v. Virginia, 6 Wh. 264; American Insurance Company v. 
Canter (356 bales cotton), i Pet. 511; Kendall, Postmaster-General, v. 
The United States, 12 Pet. 524; United States v. Dewitt, 9 Wall. 41; 
Dunphy v. Kleinschmidt et al., 11 Wall. 610; Willard v. Presbury, 14 Wall 
676; Kohl et ell. ». United States, 91 U. S. 367; Phillips p. Payne, 92 
U. S. 130; United States v. Fox, 94 U. S. 315; National Bank v. Yank- 
ton County, loi U. S. 129; Ft. Leavenworth R. Rd. Co. v. Howe, 114 
U. S. 525; Benson v. United States, 146 U. S. 325; Shoemaker v. United 
States, 147 U. S. 282; Chappell v. United States, 160 U. S. 499; Ohio v. 
Thomas, 173 U. S. 276; Wight v. Davidson, 181 U. S. 371; Battle v. 
United States, 209 U. S. 36. 

To make all Laws which shall be necessary and proper for carrying 
into Execution the foregoing Powers, and all other Powers vested by 
this Constitution in the Government of the United States, or in any 
Department or Officer thereof. 

McCulloch V. The State of Maryland, 4 Wh. 316; Wayman v. South- 
ard, 10 Wh. I ; Bank of United States v. Halstead, lo Wh. 51 ; Hepburn 



620 APPENDIX 

Appendix »• Griswold, 8 Wall. 603; National Bank v. Commonwealth, 9 Wall. 

XX 353; Thomson v. Pacific Railroad, 9 Wall. 579; Parker v. Davis, 12 

Wall. 457; Railroad Company v. Johnson, 15 Wall. 195; Railroad Com- 
pany V. Peniston, 18 Wall. 5; Legal Tender Case, no U. S. 421; In re 
Coy, 127 U. S. 731; Stoutenburgh v. Hennick, 129 U. S. 141; Chinese 
Ex. Case, 130 U. S. 581; In re Neagle, 135 U. S. i; St. Paul, Minnea- 
polis & Manitoba Ry. Co. v. Phelps, 137 U. S. 528; Horner zi. United 
States, 143 U. S. 570; Logan u. United States, 144 U. S. 263; Fong 
Yue Ting v. United States, 149 U. S. 698; Lees v. United States, 150 
U. S. 476; Luxton V. North River Bridge Co., 153 U. S. 529; Erie R. 
Rd. V. Pennsylvania, 153 U. S. 628; Postal Tel. Cable Co. v. Charles- 
ton, 153 U. S. 692; Clune v. United States, 159 U. S. 590; Motes 
V. United States, 178 U. S. 458; Buttfield v. Stranahan, 192 U. S. 470. 

Section 9. The Migration or Importation of such Persons as any of 
the States now existing shall think proper to admit, shall not be pro- 
hibited by the Congress prior to the Year one thousand eight hundred 
and eight, but a Tax or duty may be imposed on such Importation, not 
exceeding ten dollars for each Person. 

Dred Scott v. Sandford, 19 How. 393. 

The privilege of the Writ of Habeas Corpus shall not be suspended, 
unless when in Cases of Rebellion or Invasion the public Safety may 
require it. 

United States v. Hamilton, 3 Dall. 17; Hepburn et al. v. Ellzey, 2 
Cr. 445; Ex parte Bollman and Swartwout, 4 Cr. 75; Ex parte Kearney, 

7 Wh. 38; Ex parte Tobias Watkins, 3 Pet. 192; Ex parte Milburn, 9 
Pet. 704; Holmes v. Jennison et al., 14 Pet. 540; Ex parte Dorr, 3 How. 
103; Luther v. Borden, 7 How. i ; Ableman v. Booth and United States 
V. Booth, 21 How. 506; Ex parte Vallandigham, i Wall. 243; Ex parte 
MilHgan, 4 Wall. 2; Ex parte McCardle, 7 Wall. 506; Ex parte Yerger, 

8 Wall. 85; Tarble's Case, 13 Wall. 397; Ex parte Lange, 18 Wall. 163; 
Ex parte Parks, 93 U. S. 18; Ex parte Karstendick, 93 U. S. 396; Ex 
parte Virginia, 100 U. S. 339; In re Neagle, 135 U. S. i; In re Duncan, 
139 U. S. 449; In re Frederick, 149 U. S. 70; United States v. Sing Tuck, 
194 U. S. 161; United States v. Ju Toy, 198 U. S. 253; Carfer v. Cald- 
well, 200 U. S. 293; McNichols v. Pease, 207 U. S. 100. 

No Bill of Attainder or ex post facto Law shall be passed. 

Fletcher v. Peck, 6 Cr. 87; Ogden v. Saunders, 12 Wh. 213; Watson 
et al. V. Mercer, 8 Pet. 88; Carpenter et al. v. Commonwealth of Penn- 
sylvania, 17 How. 456; Locke v. New Orleans, 4 Wall. 172; Cummings 
V. The State of Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333; 
Drehman v. Stifle, 8 Wall. 595; Klinger v. State of Missouri, 13 Wall. 
257; Pierce v. Carskadon, 16 Wall. 234; Holden v. Minnesota, 137 U. S. 
483; Cook V. United States, 138 U. S. 157; Neely v. Henkel (No. i), 
180 U. S. 109; Southwestern Coal Co. v. McBride, 183 U. S. 499; 
Delamater v. South Dakota, 205 U. S. 93, 

No Capitation, or other direct, Tax shall be laid, unless in Proportion 
to the Census or Enumeration herein before directed to be taken. 

License Tax Cases, 5 Wall. 462; Springer v. United States, 102 



APPENDIX 621 

U. S. 586; Pollock V. Farmers' Loan & Trust Co., 157 U. S. 429; Nichols Appendix 
V. Ames, 173 U. S. 509; South Carolina v. United States, 199 U. S. 437. XX 

No Tax or Duty shall be laid on Articles exported from any State. 

Cooley V. Board of Wardens of Port of Philadelphia, 12 How. 299; 
Pace V. Burgess, collector, 92 U. S. 372; Turpin v. Burgess, 117 U. S. 
504; Pittsburgh & Southern Coal Co. v. Bates, 156 U. S. 577; Nichols 
V. Ames, 173 U. S. 509; Williams v. Fears, 179 U. S. 270; De Lima v. 
Bidwell, 182 U. S. i; Dooley v. United States, 183 U. S. 151; Fourteen 
Diamond Rings v. United States, 183 U. S. 176; Cornell v. Coyne, 192 
U. S. 418; South Carolina v. United States, 199 U. S. 437; Armour 
Packing Co. v. United States, 209 U. S. 56. 

No Preference shall be given by any Regulation of Commerce or 
Revenue to the Ports of one State over those of another: nor shall Ves- 
sels bound to, or from, one State, be obliged to enter, clear, or pay 
Duties in another. 

Cooley V. Board of Wardens of Port of Philadelphia et al., 12 How. 
299 ; State of Pennsylvania v. Wheeling and Belmont Bridge Company 
et al., 18 How. 421; Munn v. Illinois, 94 U. S. 113; Packet Co. v. St. 
Louis, 100 U. S. 423; Packet Co. v. Catlettsburg, 105 U. S. 559; Mor- 
gan S. S. Co. V. La. Board of Health, 118 U. S. 455; Johnson v. Chicago 
& Pacific Elevator Co., 119 U. S. 388; South Carolina v. United States, 
199 U. S. 437; Armour Packing Co. v. United States, 209 U. S. 56. 

No Money shall be drawn from the Treasury, but in Consequence of 
Appropriations made by Law ; and a regular Statement and Account of 
the Receipts and Expenditures of all public Money shall be published 
from time to time. 

No Title of Nobility shall be granted by the United States: And no 
Person holding any Office of Profit or Trust under them, shall, without 
the Consent of the Congress, accept of any present, Emolument, Office, 
or Title, of any kind whatever, from any King, Prince, or foreign State. 

Section 10. No State shall enter into any Treaty, Alliance, or Con- 
federation; grant Letters of Marque and Reprisal; coin Money; emit 
Bills of Credit; make any Thing but gold and silver Coin a Tender in 
Payment of Debts; pass any Bill of Attainder, ex post facto Law, or 
Law impairing the Obligation of Contracts, or grant any Title of No- 
bility. 

Calder and Wife v. Bull and Wife, 3 Dall. 386; Fletcher v. Peck, 6 
Cr. 87; State of New Jersey v. Wilson, 7 Cr. 164; Sturgis v. Crownin- 
shield, 4 Wh. 122; McMillan v. McNeil, 4 Wh. 209; Dartmouth Col- 
lege V. Woodward, 4 Wh. 518; O wings v. Speed, 5 Wh. 420; Farmers' 
and Mechanics' Bank v. Smith, 6 Wh. 131; Green et al. v. Biddle, 
8 Wh. i; Ogden v. Saunders, 12 Wh. 213; Mason v. Haile, 12 Wh. 370; 
Satterlee v. Matthewson, 2 Pet. 380; Hart v. Lamphire, 3 Pet. 280; 
Craig et al. v. State of Missouri, 4 Pet. 410; Providence Bank v. Bil- 
lings and Pitman, 4 Pet. 514; Byrne v. State of Missouri, 8 Pet. 40; 
Watson V. Mercer, 8 Pet. 88; Mumma v. Potomac Company, 8 Pet. 
281; Beers v. Haughton, 9 Pet. 329; Briscoe et al. v. The Bank of the 
Commonwealth of Kentucky, 11 Pet. 257; The Proprietors of Charles 



622 APPENDIX 

Appendix River Bridge v. The Proprietors of Warren Bridge, ii Pet. 420; Arm- 

XX strong r. The Treasurer of Athens Company, 16 Pet. 281; Bronsonp. 

Kinzie et al., i How. 311; McCracken v. Hay ward, 2 How. 608 ; Gordon 
V. Appeal Tax Court, 3 How. 133; State of Maryland v. Baltimore and 
Ohio R. R. Co., 3 How. 534; Neil, Moore & Co. v. State of Ohio, 3 How. 
720; Cook V. Moffatt, 5 How. 295; Planters' Bank v. Sharp et al., 6 
How. 301; West River Bridge Company v. Dix et al., 6 How. 507; 
Crawford et al. v. Branch Bank of Mobile, 7 How. 279; Woodruff v. 
Trapnall, 10 How. 190; Paup et al. v. Drew, 10 How. 218; Baltimore 
and Susquehanna R. R. Co. v. Nesbitt et al., 10 How. 395; Butler et al. 
V. Pennsylvania, 10 How. 402 ; Darrington et al. t». The Bank of Alabama, 
13 How. 12; Richmond, etc., R. R. Co. v. The Louise R. R. Co., 13 
How. 71; Trustees for Vincennes University v. State of Indiana, 14 
How. 268; Curran i;. State of Arkansas et al., 15 How. 304; State Bank 
of Ohio V. Knoop, 16 How. 369; Carpenter et al. v. Commonwealth of 
Pennsylvania, 17 How. 456; Dodge v. Woolsey, 18 How. 331; Beers 
V. State of Arkansas, 20 How. 527; Aspinwall et al. v. Commissioners of 
County of Daviess, 22 How. 364; Rector of Christ Church, Philadel- 
phia V. County of Philadelphia, 24 How. 300; Howard v. Bugbee, 24 
How. 461; Jefferson Branch Bank v. Skelley, I Black, 436; Franklin 
Branch Bank v. State of Ohio, i Black, 474; Trustees of the Wabash 
and Erie Canal Company v. Beers, 2 Black, 448; Oilman v. City of 
Sheboygan, 2 Black, 510; Bridge Proprietors v. Hoboken Company, 
I Wall. 116; Hawthorne v. Calef, 2 Wall. 10; The Binghamton Bridge, 

3 Wall. 51 ; The Turnpike Company v. The State, 3 Wall. 210; Locke v. 
City of New Orleans, 4 Wall. 172; Railroad Company v. Rock, 4 Wall. 
177; Cummings v. State of Missouri, 4 Wall. 277; Ex parte Garland, 

4 Wall. 333; Von Hoffman v. City of Quincy, 4 Wall. 535; Mulligan v. 
Corbin, 7 Wall. 487; Furman v. Nichol, 8 Wall. 44; Home of the Friend- 
less V. Rouse, 8 Wall. 430; The Washington University v. Rouse, 8 
Wall. 439; Butz V. City of Muscatine, 8 Wall. 575; Drehman ». Stifle, 
8 Wall. 595; Hepburn v. Griswold, 8 Wall. 603; Gut v. The State, 9 
Wall. 35; Railroad Company?;. McClure, 10 Wall. 511; Parker ». Davis, 
12 Wall. 457; Curtis v. Whitney, 13 Wall. 68; Pennsylvania College 
Cases, 13 Wall. 190; Wilmington R. R. v. Reid, sheriff, 13 Wall. 264; 
Salt Company v. East Saginaw, 13 Wall. 373; White v. Hart, 13 Wall. 
646; Osborn v. Nicholson et al., 13 Wall. 654; Railroad Company v. 
Johnson, 15 Wall. 195; Case of the State Tax on Foreign-held Bonds, 
15 Wall. 300; Tomlinson v. Jessup, 15 Wall. 454; Tomlinson v. Branch, 
15 Wall. 460; Miller v. The State, 15 Wall. 478; Holyoke Company 
V. Lyman, 15 Wall. 500; Gunn v. Barry, 15 Wall. 610; Humphrey v. 
Pegues, 16 Wall. 244; Walker v. Whitehead, 16 Wall. 314; Sohn v. 
Waterson, 17 Wall. 596; Baring v. Dabney, 19 Wall, i; Head v. The 
University, 19 Wall. 526; Pacific R. R. Co. v. Maguire, 20 Wall. 36; 
Garrison v. The City of New York, 21 Wall. 196; Ochiltree v. The Rail- 
road Company, 21 Wall. 249; Wilmington, &c.. Railroad v. King, ex., 

91 U. S. 3; County of Moultrie v. Rockingham Ten Cent Savings Bank, 

92 U. S. 631; Home Insurance Company v. City Council of Augusta, 

93 U. S. 116; West Wisconsin R. R. Co. v. Supervisors, 93 U. S. 595; 
Murray v. Charleston, 96 U. S. 432; Edwards v. Kearzey, 96 U. S. 595; 
Keith V. Clark, 97 U. S. 454; Railroad Co. v. Georgia, 98 U. S. 359; 
Railroad Co. v. Tennessee, loi U. S. 337; Wright v. Nagle, loi U. S. 
791; Stone ». Mississippi, loi U. S. 814; Railroad Co. v. Alabama, loi 



APPENDIX 623 

U. S. 832; Louisiana v. New Orleans, 102 U. S. 203; Hall v. Wisconsin, Appendix 
103 U. S. 5; Penniman's Case, 103 U. S. 714; Guaranty Co. v. Board of XX 

Liquidation, 105 U. S. 622; Greenwood v. Freight Co., 105 U. S. 13; 
Kring v. Missouri, 107 U. S. 221; Louisiana v. New Orleans, 109 U. S. 
285; Gilfillan v. Union Canal Co., 109 U. S. 401 ; Nelson v. St. Martin's 
Parish, iii U. S. 716; Chic. Life Ins. Co. v. Needles, 113 U. S. 574; 
Virginia Coupon Cases, 114 U. S. 269; Allen, Auditor, et al. v. Balti- 
more & Ohio R. R. Co., 114 U. S. 311; Amy v. Shelby Co., 114 U. S. 
387; Effinger v. Kenney, 115 U. S. 566; N. Orleans Gas Co. v. La. Light 
Co., 115 U. S. 650; N. Orleans Water Works v. Rivers, 115 U. S. 674; 
Louisville Gas Co. v. Citizens' Gas Co., 115 U. S. 683; Fisk v. Jefferson 
Police Jury, 116 U. S. 131 ; Stone v. Farmers' Loan and Trust Co., 116 
U. S. 307; Stone v. 111. Central R. R. Co., 116 U. S. 347; Royall v. Vir- 
ginia, 116 U. S. 572; St. Tammany Water Works v. N. Orleans Water 
Works, 120 U. S. 64; Church v. Kelsey, 121 U. S. 282; Lehigh Water Co. 
V. Boston, 121 U. S. 388; Seibert v. Lewis, 122 U. S. 284; N. Orleans 
Water Works v. La. Sugar Ref. Co., 125 U. S. 18; Maynard v. Hill, 125 
U. S. 140; Jaehnev. N. Y., 128 U. S. 189; Denny v. Bennett, 128 U. S. 489} 
Chinese Ex. Case, 130 U. S. 588; Williamson v. N. J., 130 U. S. 189; 
Hunt V. Hunt, 131 U.S.clxv; Freeland w. Williams, 131 U. S. 405; Camp- 
bell V. Wade, 134 U. S. 34; Penna. R. Rd. Co. v. Miller, 132 U. S. 75; 
Hans V. Louisiana, 134 U. S. i ; North Carolina v. Temple, 134 U. S. 22; 
Crenshaw v. United States, 134 U. S. 99; Louisiana ex rel. The N. Y. 
Guaranty and Indemnity Co. v. Steele, 134 U. S. 280; Minneapolis 
Eastern Rwy. Co. v. Minnesota, 134 U. S. 467; Hill v. Merchants' Ins. 
Co., 134 U. S. 515; Medley, petitioner, 134 U. S. 160; Cherokee Nation 
V. Kansas Ry. Co., 135 U. S. 641; Virginia Coupon Cases, 135 U. S. 
662; Mormon Church ». United States, 136 U. S. i; Wheeler v. Jack- 
son, 137 U. S. 245; Holden v. Minnesota, 137 U. S. 483; Sioux City 
Street Railway Co. p. Sioux City, 138 U. S. 98; Cook w. United States, 
138 U. S. 157; Wheeling & Belmont Br. Co. v. Wheeling Br. Co., 138 
U. S. 287; Cook County v. Calumet and Chicago Canal Co., 138 
U, S. 635; Pennoyer v. McConnaughy, 140 U. S. i; County Court v. 
U. S. ex rel. Hill, 139 U. S. 41 ; Scott v. Neely, 140 U. S. 106; Essex Pub- 
lic Road Board v. Shinkle, 140 U. S. 334; Stein v. Bienville Water 
Supply Co., 141 U. S. 67; Henderson Bridge Co. v. Henderson, 141 
U. S. 679; New Orleans v. N. O. Water W'ks, 142 U. S. 79; Pacific Ex. 
Co. V. Seibert, 142 U. S. 339; N. O. City & Lake R. Rd. Co. v. New Or- 
leans, 143 U. S. 192; Winona & St. Peter R. Rd. Co. v. Plainview, 143 
U. S. 371; Louisville Water Co. v. Clark, 143 U. S. i; N. Y. v. Squire, 

145 U. S. 175; Brown v. Smart, 145 U. S. 454; Baker's Exrs. ». Kil- 
gore, 145 U. S. 487; Morley v. Lake Shore & Mich. Southern Ry. Co., 

146 U. S. 162; Wilmington & Weldon R. Rd. Co. v. Alsbrook, 146 
U. S. 279; Butler v. Goreley, 146 U. S. 303; Ills. Cent. R. Rd. v. Ills., 
146 U. S. 387; Hamilton Gas L't Co. v. Hamilton City, 146 U. S. 
258; Bier v. McGehee, 148 U. S. 137; Schurz ». Cook, 148 U. S. 397} 
Eustis V. BoUes, 150 U. S. 361; Duncan v. Missouri, 152 U. S. 377; 
Israel v. Arthur, 152 U. S. 355; New Orleans v. Benjamin, 153 U. S. 
411; Eagle Ins. Co. v. Ohio, 153 U. S. 446; Erie R. Rd. v. Penna., 
153 U. S. 628; Mobile & Ohio R. Rd. v. Tenn., 153 U. S. 486; Pitts- 
burgh & So. Coal Co. V. La., 156 U. S. 590; United States ex rel. Siegel 
V. Thoman, 156 U. S. 353; City and Lake R. Rd. v. N. O., 157 U. S. 
219; Central Land Co. v. Laidley, 159 U. S. 103; Winona & St. Peter 



624 APPENDIX 

Appendix Land Co. v. Minn., 159 U. S. 528; Bank of Commerce v. Tenn., 161 

XX U. S. 134; Baltzer v. N. C, 161 U. S. 240; Woodruff v. Miss., 162 

U. S. 291; Gibson v. Miss., 162 U. S. 565; Barnitzi;. Beverly, 163 U. S. 
118; Hanford v. Davies, 163 U. S. 273; Covington, &c., Turnpike Co. 
V. Sandford, 164 U. S. 578; St. Louis, &c., Ry. Co. v. Mathews, 165 
U. S. I ; Allgeyer v. Louisiana, 165 U. S. 578; Water Power Co. v. Water 
Commissioners, 168 U. S. 349; Douglas v. Kentucky, 168 U. S. 488; 
Hawker v. New York, 170 U. S. 189; Galveston, &c., Ry. Co. v. Texas, 
170 U. S. 226; Houston, &c., Ry. Co. v. Texas, 170 U.S. 243; Williams 
V. Eggleston, 170 U. S. 304; Thompson v. Utah, 170 U. S. 343; Chicago, 
&c., R. R. Co. V. Nebraska, 170 U. S. 57; Thompson v. Missouri, 171 
U. S. 380; Walla Walla v. Walla Walla Water Co., 172 U. S. i ; McCol- 
lough V. Va., 172 U. S. 102; Covington v. Kentucky, 173 U. S. 231; 
Citizens' Savings Bank v. Owensboro, 173 U. S. 636; Walsh v. Columbus, 
&c., R. R. Co., 176 U. S. 469; Stearns t). Minn., 179 U. S. 223; McDonald 
V. Massachusetts, 180 U. S. 311; Mallett ». North Carolina, 181 U. S. 
589; Diamond Glue Co. v. U. S. Glue Co., 187 U. S. 611; Reetz v. 
Michigan, 188 U. S. 505; Savannah, Thunderbolt, &c. Ry. v. Savan- 
nah, 198 U. S. 392; Knights of Pythias v. Meyer, 198 U. S. 508; Tampa 
Water Works I). Tampa, 199 U.S. 241; Manigault v. Springs, 199 U. S. 
473; Metropolitan Street Ry. Co. v. Tax Comm'rs, 199 U. S. i ; Kies v. 
Lowrey, 199 U. S. 233; Graham v. Folsom, 200 U. S. 248; San Antonio 
Traction Co. v. Altgelt, 200 U. S. 304; Water Company v. Knoxville, 200 
U. S. 22; Gunter v. Atlantic Coast Line, 200 U. S. 273; Powers v. De- 
troit, & G. H. and M. Railway, 201 U. S. 543; Cleveland v. Cleveland 
Electric Railway, 201 U. S. 529; West Chicago Railroad v. Chicago, 201 
U. S. 506; Blair v. Chicago, 201 U. S. 400; Devine v. Los Angeles, 202 
U. S. 313; Vicksburgf. Waterworks Co., 202U. S. 453; National Council 
V. State Council, 203 U. S. 151; Offieldv. New York, New Haven and 
Hartford R. R. Co., 203 U. S. 372; American Smelting &c. Co. v. Colo., 
204 U. S. 103; Cleveland Electric Railway Co. v. Cleveland, 204 U. S. 
116; Rochester Railway Co. v. Vicksburg Waterworks Co., 206 U. S. 
496; Bernheimer v. Converse, 206 U. S. 576; Sauer v. City of New York, 
206 U. S. 536; Smith V. Jennings, 206 U. S. 276; Sullivan v. Texas, 207 
U. S. 416; Hunter v. Pittsburg, 207 U. S. 161 ; Polk v. Mutual Reserve 
Fund Association, 207 U. S. 310; Felton v. University of the South, 
208 U. S. 489; Northern Pacific Railways. Duluth, 208 U. S. 583; 
Cosmopolitan Club v. Virginia, 208 U. S. 378; Hudson Water Co. v. 
McCarter, 209 U. S. 349; Yazoo & Mississippi Railroad Co. v. Vicks- 
burg, 209 U. S. 358; St. Louis V. United Railways Co., 210 U. S. 266; 
Waters-Pierce Oil Co. v. Texas, 212 U. S. 86; Hammond Packing Co. 
V. Arkansas, 212 U. S. 322; Louisiana ex rel. Hubert v. New Orleans, 

215 U.S. 170; Henlyw. Myers, 215 U. S. 373; Minneapolis v. Minne- 
apolis Street R. Co., 215 U. S. 417; Wright v. Georgia R. & Bkg. Co., 

216 U. S. 420; Missouri P. R. Co. v. Kansas ex rel. Taylor, 216 U. S. 
262; Citizens' Natl. Bank v. Kentucky, 217 U. S. 443; Griffith v. Con- 
necticut, 218 U. S. 563; Calder v. Michigan, 218 U. S. 591; Arkansas 
S. R. Co. V. Louisiana, 218 U. S. 431; Moffitt v. Kelly, 218 U. S. 400. 

No State shall, without the Consent of the Congress, lay any Imposts 
or Duties on Imports or Exports, except what may be absolutely neces- 
sary for executing it's inspection Laws; and the net Produce of all Duties 
and Imposts, laid by any State on Imports or Exports, shall be for the 



APPENDIX 625 

Use of the Treasury of the United States; and all such Laws shall be Appendix 
subject to the Revision and Controul of the Congress. XX 

McCulloch V. State of Maryland, 4 Wh. 316; Gibbons v. Ogden, 
9 Wh. I ; Brown v. The State of Maryland, 12 Wh. 419; Mager v. Griraa 
> et al., 8 How. 490; Cooley v. Board of Wardens of Port of Philadel- 
phia et al., 12 How. 299; Almy v. State of California, 24 How. 169; 
License Tax Cases, 5 Wall. 462; Crandall v. State of Nevada, 6 Wall. 
35; Waring v. The Mayor, 8 Wall, no; WoodrufiF v. Perham, 8 Wall. 
123; Hinson v. Lott, 8 Wall. 148; State Tonnage Tax Cases, 12 Wall. 
204; State Tax on Railway Gross Receipts, 15 Wall. 284; Inman Steam- 
ship Company v. Tinker, 94 U. S. 238; Cook v. Pennsylvania, 97 U. S. 
566; Packet Co. v. Keokuk, 95 U. S. 80; People v. Compagnie Generale 
Transatlantique, 107 U. S. 59; Brown v. Houston, 114 U. S. 622; Pitts- 
burgh & So. Coal Co. V. Bates, 156 U. S. 577; Pittsburgh & So. Coal 
Co. V. La., 156 U. S. 590; Patapsco Guano Co. ». N. C, 171 U. S. 345; 
May & Co. v. New Orleans, 178 U. S. 496; Dooley v. United States, 183 
U. S. 151; Cornell v. Coyne, 192 U. S. 418; American Steel & Wire Co. 
V. Speed, 192 U. S. 500; Delaware, L., &c., R. R. Co. v. Pennsylvania, 
198 U. S. 341 ; McLean v. Denver & Rio Grande R. R., 203 U. S. 38. 

No State shall, without the Consent of Congress, lay any duty of 
Tonnage, keep Troops, or Ships of War in time of Peace, enter into any 
Agreement or Compact with another State, or with a foreign Power, or 
engage in War, unless actually invaded, or in such imminent Danger 
as will not admit of delay. 

Green v. Biddle, 8 Wh. i ; Poole et al. v. The Lessee of Fleeger et al., 

11 Pet. 185; Cooley v. Board of Wardens of Port of Philadelphia et al., 

12 How. 299; Peete v. Morgan, 19 Wall. 581; Cannon f. New Orleans, 
20 Wall. 577; Inman Steamship Company v. Tinker, 94 U. S. 238; 
Packet Co. v. St. Louis, 100 U. S. 423; Packet Co. v. Keokuk, 95 U. S. 
80; Vicksburg v. Tobin, 100 U. S. 430; Packet Co. v. Catlettsburg, 105 
U. S. 559; Morgan Steamship Company v. Louisiana Board of Health, 
118 U. S. 455; Ouachita Packet Co. v. Aiken, 121 U. S. 444; Huse v. 
Glover, 119 U. S. 543; Harmon v. Chicago, 147 U. S. 396; Va. v. Tenn., 
148 U. S. 503; Wharton v. Wise, 153 U. S. 155; St. Louis and San 
Francisco Ry. Co. v. James, 161 U. S. 545. 

ARTICLE II 

Section i . The executive Power shall be vested in a President of the 
United States of America. He shall hold his Office during the Term of 
four Years, and, together with the Vice-President, chosen for the same 
Term, be elected, as follows. 

Field V. Clark, 143 U. S. 649. 

Each State shall appoint, in such Manner as the Legislature thereof 
may direct, a Number of Electors, equal to the whole Number of 
Senators and Representatives to which the State may be entitled in 
the Congress: but no Senator or Representative or Person holding an 



626 APPENDIX 

Appendix Office of Trust or Profit under the United States, shall be appointed 
XX an Elector. 

Chisholm, ex., v. Georgia, 2 Dall. 419; Leitensdorfer et al. v. Webb, '\ 
20 How. 176; Ex parte Siebold, 100 U. S. 271; In re Green, 134 U. S. 
377; McPherson v. Blacker, 146 U. S. I. 

[The Electors shall meet in their respective States, and vote by Ballot 
for two persons, of whom one at least shall not be an Inhabitant of the 
same State with themselves. And they shall make a List of all the Per- 
sons voted for, and of the Number of Votes for each ; which List they 
shall sign and certify, and transmit sealed to the Seat of the Govern- 
ment of the United States, directed to the President of the Senate. The 
President of the Senate shall, in the Presence of the Senate and House 
of Representatives, open all the Certificates, and the Votes shall then 
be counted. The Person having the greatest Number of Votes shall be 
the President, if such Number be a Majority of the whole Number of 
Electors appointed; and if there be more than one who have such 
Majority, and have an equal Number of Votes, then the House of 
Representatives shall immediately chuse by Ballot one of them for 
President; and if no Person have a Majority, then from the five highest 
on the List the said House shall in like Manner chuse the President. 
But in chusing the President, the Votes shall be taken by States, the 
Representation from each State having one Vote; A quorum for this 
Purpose shall consist of a Member or Members from two thirds of the 
States, and a Majority of all the States shall be necessary to a Choice. 
In every Case, after the Choice of the President, the Person having the 
greatest Number of Votes of the Electors shall be the Vice-President. 
But if there should remain two or more who have equal Votes, the 
Senate shall chuse from them by Ballot the Vice-President.]"^ 

The Congress may determine the Time of chusing the Electors, and 
the Day on which they shall give their Votes; which Day shall be the 
same throughout the United States. 

No person except a natural born Citizen, or a Citizen of the United 
States at the time of the Adoption of this Constitution, shall be eligible 
to the Office of President; neither shall any Person be eligible to that 
Office who shall not have attained to the Age of thirty-five Years, and 
been fourteen Years a Resident within the United States. 

Inglis V. The Trustees of the Sailors' Snug Harbor, 3 Pet. 99. 

In Case of the Removal of the President from Office, or of his Death, 
Resignation, or Inability to discharge the Powers and Duties of the 
said Office, the same shall devolve on the Vice-President, and the Con- 
gress may by Law provide for the Case of Removal, Death, Resignation 
or Inability, both of the President and Vice-President, declaring what 
Officer shall then act as President, and such Officer shall act accordingly, 
until the Disability be removed, or a President shall be elected. 

The President shall, at stated Times, receive for his Services, a Com- 

^ This clause has been superseded by the Twelfth Amendment. 



APPENDIX 627 

pensation, which shall neither be encreased nor diminished during the Appendix 
Period for which he shall have been elected, and he shall not receive XX 

within that Period any other Emolument from the United States, or 
any of them. 

Pollock V. Farmers' Loan & Trust Co., 157 U. S. 429. 

Before he enter on the Execution of his Office, he shall take the fol- 
lowing Oath or Affirmation: " I do solemnly swear (or affirm) that I will 
faithfully execute the Office of President of the United States, and will 
to the best of my Ability, preserve, protect and defend the Constitution 
of the United States." 

Section 2. The President shall be Commander in Chief of the Army 
and Navy of the United States, and of the Militia of the several States, 
when called into the actual Service of the United States; he may require 
the Opinion, in writing, of the principal Officer in each of the executive 
Departments, upon any subject relating to the Duties of their respective 
Offices, and he shall have Power to grant Reprieves and Pardons for 
Offenses against the United States, except in Cases of Impeachment. 

United States v. Wilson, 7 Pet. 150; Ex parte William Wells, 18 How. 
307; Ex parte Garland, 4 Wall. 333; Armstrong's Foundry, 6 Wall. 
766; The Grape Shot, 9 Wall. 129; United States v. Padelford, 9 Wall 
542; United States v. Klein, 13 Wall. 128; Armstrong v. The United 
States, 13 Wall. 152; Pargoud v. The United States, 13 Wall. 156; 
Hamilton v. Dillin, 21 Wall. 73; Mechanics' and Traders' Bank v. 
Union Bank, 22 Wall. 276; Lamar, ex., v. Browne et al., 92 U. S. 187; 
Wallach et al. v. Van Riswick, 92 U. S. 202; Eustis v. Bolles, 150 U. S. 
361. 

He shall have Power, by and with the Advice and Consent of the 
Senate, to make Treaties, provided two thirds of the Senators present 
concur; and he shall nominate, and by and with the Advice and Consent 
of the Senate, shall appoint Ambassadors, other public Ministers and 
Consuls, Judges of the supreme Court, and all other Officers of the 
United States, whose Appointments are not herein otherwise provided 
for, and which shall be established by Law: but the Congress may by 
Law vest the Appointment of such inferior Officers, as they think 
proper, in the President alone, in the Courts of Law, or in the Heads 
of Departments. 

Ware v. Hylton et al., 3 Dall. 199; Marbury v. Madison, I Cr. 137; 
United States v. Kirkpatrick, 9 Wh. 720; American Insurance Com- 
pany V. Canter (356 bales cotton), i Pet. 511; Foster and Elam v. 
Neilson, 2 Pet. 253; Cherokee Nation v. State of Georgia, 5 Pet. i; 
Patterson v. Winn et al., 5 Pet. 233; Worcester v. State of Georgia, 
6 Pet. 515; City of New Orleans v. De Armas et al., 9 Pet. 224; Holden 
V. Joy, 17 Wall. 211 ; Geofroy v. Riggs, 133 U. S. 258; Horner v. United 
States, 143 U. S. 570; Shoemaker v. United States, 147 U. S. 282; Par- 
sons V. United States, 167 U. S. 324; Rice v. Ames, 180 U. S. 371; 
Fourteen Diamond Rings v. United States, 183 U. S. 176; Dorr v. 
United States, 195 U. S. 138. 



628 APPENDIX 

Appendix The President shall have Power to fill up all Vacancies that may hap- 
XX pen during the Recess of the Senate, by granting Commissions which 

shall expire at the End of their next Session. 

the United States v. Kirkpatrick et al., 9 Wh. 720. 

Section 3. He shall from time to time give to the Congress Informa- 
tion of the State of the Union, and recommend to their Consideration 
such Measures as he shall judge necessary and expedient; he may, on 
extraordinary Occasions, convene both Houses, or either of them, and 
in Case of Disagreement between them, with Respect to the Time of 
Adjournment, he may adjourn them to such Time as he shall think 
proper; he shall receive Ambassadors and other public Ministers; he 
shall take Care that the Laws be faithfully executed, £md shall Com- 
mission all the Officers of the United States. 

Marbury v. Madison, i Cr. 137; Kendall, Postmaster-General, v. 
The United States, 12 Pet. 524; Luther v. Borden, 7 How. i ; The State 
of Mississippi v. Johnson, President, 4 Wall. 475; Stewart v. Kahn, ll 
Wall. 493; In re Neagle, 135 U. S. i. 

Section 4. The President, Vice-President and all civil Officers of the 
United States, shall be removed from Office on Impeachment for, and 
Conviction of, Treason, Bribery, or other high Crimes and Misde- 
meanors. 

Langford v. United States, loi U. S. 341. 

ARTICLE III 

Section i. The judicial Power of the United States, shall be vested 
in one supreme Court, and in such inferior Courts as the Congress may 
from time to time ordain and establish. The Judges, both of the supreme 
and inferior Courts, shall hold their Offices during good Behaviour, and 
shall, at stated Times, receive for their Services a Compensation which 
shall not be diminished during their Continuance in Office. 

Chisholm, ex., v. Georgia, 2 Dall. 419; Stuart v. Laird, I Cr. 299; 
United States v. Peters, 5 Cr. 115; Martin v. Hunter's Lessee, i Wh. 
304; Cohens v. Virginia, 6 Wh. 264; Osborn v. United States Bank, 
9 Wh. 738; Benner et al. v. Porter, 9 How. 235; The United States v. 
Ritchie, 17 How. 525; Murray's Lessee et al. v. Hoboken Land and 
Improvement Company, 18 How. 272; Ex parte Vallandigham, I Wall. 
243; Ames V. Kansas, iii U. S. 449; In re Ross, 140 U. S. 453; McAl- 
lister V. United States, 141 U. S. 174; Pollock v. Fanners' Loan & Trust 
Co., 157 U. S. 429; Robertson v. Baldwin, 165 U. S. 275; Hanover 
National Bank v. Moyses, 186 U. S. 181; Turner v. Williams, 194 U. S. 
279; Ex parte Wisner, 203 U. S. 449. 

Section 2. The judicial Power shall extend to all Cases, in Law and 
Equity, arising under this Constitution, the Laws of the United States, 
and Treaties made, or which shall be made, under their Authority; — 
to all Cases affecting Ambassadors, other public Ministers and Consuls; 
— to all Cases of admiralty and maritime Jurisdiction; — to Contro- 



APPENDIX ' 629 

versies to which the United States shall be a Party; — to Contro- Appendix 
versies between two or more States; — between a State and Citizens XX 

of another State; — between Citizens of different States, — between 
Citizens of the same State claiming Lands under Grants of different 
States, and between a State, or the Citizens thereof, and foreign States, 
Citizens or Subjects. 

Hayburn's Case (note), 2 Dall. 410; Chisholm, ex., v. Georgia, 2 
Dall. 419; Glass et al. v. Sloop Betsey, 3 Dall. 6; United States v. La 
Vengeance, 3 Dall. 297; Hollingsworth et al. v. Virginia, 3 Dall. 378; 
Mossman, ex., v. Higginson, 4 Dall. 12; Marbury v. Madison, i Cr. 
137; Hepburn et al. v. Ellzey, 2 Cr. 444; United States v. More, 3 Cr. 
159; Strawbridge et al. v. Curtiss et al., 3 Cr. 267; Ex parte Bollman 
and Swartwout, 4 Cr. 75; Rose v. Himely, 4 Cr. 241 ; Chappedelaine et 
al. V. Dechenaux, 4 Cr. 305; Hope Insurance Company v. Boardman et 
al., 5 Cr. 57; Bk. of United States v. Deveaux et al., 5 Cr. 61; Hodgson 
et al. V. Bowerbank et al., 5 Cr. 303; Owings v. Norwood's Lessee, 5 
Cr. 344; Durousseau v. The United States, 6 Cr. 307; United States 
V. Hudson and Goodwin, 7 Cr. 32; Martin v. Hunter, i Wh. 304; Col- 
son et al. V. Lewis, 2 Wh. 377; United States v. Bevans, 3 Wh. 336; 
Cohens v. Virginia, 6 Wh. 264; Ex parte Kearney, 7 Wh. 38 ; Matthews 
V. Zane, 7 Wh. 164; Osborn v. United States Bank, 9 Wh. 738; United 
States V. Ortega, 11 Wh. 467; American Insurance Company v. Canter 
(356 bales cotton), i Pet. 511; Jackson v. Twentyman, 2 Pet. 136; 
Cherokee Nation v. State of Georgia, 5 Pet. i; State of New Jersey 
V. State of New York, 5 Pet. 283; Davis v. Packard et al., 6 Pet. 41; 
United States v. Arredondo et al., 6 Pet. 691 ; Davis v. Packard et al., 7 
Pet. 276; Breedloveet al. v. Nicolet et al., 7 Pet. 413; Brown v. Keene, 
8 Pet. 112; Davis v. Packard et al., 8 Pet. 312; City of New Orleans 
V. De Armas et al., 9 Pet. 224; The State of Rhode Island v. The 
Commonwealth of Massachusetts, 12 Pet. 657; The Bank of Augusta 
V. Earle, 13 Pet. 519; The Commercial and Railroad Bank of Vicks- 
burg V. Slocomb et al., 14 Pet. 60; Suydam et al. v. Broadnax, 14 Pet. 
67; Prigg V. The Commonwealth of Pennsylvania, 16 Pet. 530; Louis- 
ville, Cincinnati and Charleston Railway Company v. Letson, 2 How. 
497; Cary et als. v. Curtis, 3 How. 236; Waring v. Clarke, 5 How. 441; 
Luther v. Borden, 7 How. i ; Sheldon et al. v. Sill, 8 How. 441 ; The 
Propeller Genesee Chief v. Fitzhugh et al., 12 How. 443; Fretz et al. 
V. Bull et al., 12 How. 466; Neves et al. v. Scott et al., 13 How. 268; 
State of Pennsylvania v. The Wheeling, etc., Bridge Company et al., 
13 How. 518; Marshall v. The Baltimore and Ohio R. R. Co., 16 How. 
314; The United States v. Guthrie, 17 How. 284; Smith v. State of Mary- 
land, 18 How. 71 ; Jones et al. v. League, 18 How. 76; Murray's Lessee 
et al. V. Hoboken Land and Improvement Company, 18 How. 272; 
Hyde et al. v. Stone, 20 How. 170; Irvine v. Marshall et al., 20 How. 
558; Fenn v. Holmes, 21 How. 481; Morewood et al. v. Enequist, 23 
How. 491; Commonwealth of Kentucky v. Dennison, governor, 24 
How. 66; Ohio and Mississippi Railroad Company v. Wheeler, i Black, 
286; The Steamer Saint Lawrence, i Black, 522; The Propeller Com- 
merce, I Black, 574; Ex parte Vallandigham, i Wall. 243; Ex parte 
Milligan, 4 Wall, i; The Moses Taylor, 4 Wall. 411; State of Missis- 
sippi V. Johnson, President, 4 Wall. 475; The Hine v. Trevor, 4 Wall. 
555; City of Philadelphia v. The Collector, 5 Wall. 720; State of Geor- 



630 APPENDIX 

Appendix gia v. Stanton, 6 Wall. 50; Payne v. Hook, 7 Wall. 425; The Alicia, 7 

XX Wall. 571; Ex parte Yerger, 8 Wall. 85; Insurance Company v. Dun- 

ham, II Wall. I ; Virginia v. West Virginia, 11 Wall. 39; Coal Company 
V Blatchford, 11 Wall. 172; Railway Company v. Whitton's Adm., 
13 Wall. 270; Tarble's Case, 13 Wall. 397; Blyew et al. v. The 
United States, 13 Wall. 581; Davis v. Gray, 16 Wall. 203; Case of the 
Sewing Machine Companies, 18 Wall. 353; Insurance Company v. 
Morse, 20 Wall. 445; Vannevar v. Bryant, 21 Wall. 41; The Lotta- 
wanna, 21 Wall. 558; Gaines v. Fuentes et al., 92 U. S. lo;Mullerf. 
Dows, 94 U. S. 444; Doyle v. Continental Insurance Company, 94 U. S. 
535; Tennessee v. Davis, 100 U. S. 257; Baldwin v. Franks, 120 U. S. 
678; Barron v. Burnside, 121 U. S. 186; St. Louis, Iron Mountain and 
Southern Railway v. Vickers, 122 U. S. 360; Chinese Ex. Case, 130 
U. S. 581; Brooks v. Missouri, 124 U. S. 394; New Orleans Water 
Works V. Louisiana Sugar Refining Co., 125 U. S. 18; Spencer v. Mer- 
chant, 125 U. S. 345; Dale Tile Mfg. Co. v. Hyatt, 125 U. S. 46; Felix 
V. Scharnweber, 125 U. S. 54; Hannibal and St. Joseph R. R. v. Mis- 
souri River Packet Co., 125 U. S. 260; Kreiger v. Shelby R. R. Co., 125 
U. S. 39; Craig v. Leitensdorfer, 127 U. S., 764; Jones v. Craig, 127 U. S. 
213; Wisconsin v. Pelican Ins. Co., 127 U. S. 265; United States v. 
Beebe, 127 U. S. 338; Chinese Ex. Case, 130 U. S. 581; Lincoln County 
V. Luning, 133 U. S. 529; Christian v. Atlantic & N. C. R. Rd. Co., 133 
U. S. 233; Haus V. Louisiana, 134 U. S. i ; Louisiana ex rel. The N. Y. 
Guaranty & Indemnity Co. v. Steele, 134 U. S. 280; Jones v. United 
States, 137 U. S. 202; Manchester v. Mass., 139 U. S. 240; In re Ross, 
140 U. S. 453; In re Garnett, 141 U. S. i; United States v. Texas, 143 
U. S. 621; Cooke V. Avery, 147 U. S. 375; S. Pac. Co. v. Denton, 146 
U. S. 202; Lawton v. Steele, 152 U. S. 133; Interstate Com. Comsn. v. 
Brimson, 154 U. S. 447; Chappell v. United States, 160 U. S. 499; St. 
Louis, etc., Ry. Co. v. James, 161 U. S. 545; Hanford v. Davies, 163 
U. S. 273; Fallbrook Irrigation District v. Bradley, 164 U. S. 112; In re 
Lennon, 166 U. S. 548; Meyer v. Richmond, 172 U. S. 82; Henderson 
Bridge Co. v. Henderson City, 173 U. S. 592 ; La Abra Silver Mining 
Co. V. United States, 175 U. S. 423; Louisiana v. Texas, 176 U. S. i; 
Western Union Telegraph Co. v. Ann Arbor R. R. Co., 178 U. S. 239; 
Smith V. Reeves, 178 U. S. 436; Motes v. United States, 178 U. S. 458; 
Wiley V. Sinkler, 179 U. S. 58; Missouri v. Illinois, 180 U. S. 208; Eastern 
Bldg. Association v. Welling, 181 U. S. 47; Dooley v. United States, 
182 U. S. 222; Tullock V. Mulvane, 184 U. S. 497; Patton v. Brady, 184 
U. S. 608; Kansas v. Colorado, 185 U. S. 14; Swafford v. Templeton, 
185 U. S. 487; Mobile Transportation Co. v. Mobile, 187 U. S. 479; 
Andrews v. Andrews, 188 U. S. 14; Hooker v. Los Angeles, 188 U. S. 
314; Cummings v. Chicago, 188 U. S. 410; Schaefer v. Werling, 188 
U. S. 516; The Roanoke, 189 U. S. 185; Detroit, &c., Ry. v. Osborn, 
189 U. S. 383; Patterson v. Bark Eudora, 190 U. S. 169; Howard r. 
Fleming, 191 U. S. 126; Arbuckle v. Blackburn, 191 U. S. 405; Deposit 
Bank v. Frankfort, 191 U. S. 499; Spencer v. Duplan Silk Co., 191 U. S. 
526; Wabash R. R. Co. v. Pearce, 192 U. S. 179; Rogers v. Alabama, 
192 U. S. 226; South Dakota v. North Carolina, 192 U. S. 286; Bankers' 
Casualty Co. v. Minn. St. P., &c. Ry., 192 U. S. 371; Spreckels Sugar 
Refining Co. v. McClain, 192 U. S. 397; Minnesota v. Northern Se- 
curities Co., 194 U. S. 48; Hooker v. Burr, 194 U. S. 415; Cleveland 
V. Cleveland City Ry. Co., 194 U. S. 517; Traction Company v. Mining 



APPENDIX 631 

Co., 196 U. S. 239; Dawson v. Columbia Trust Co., 197 U. S. 178; Appendix 
Jacobson v. Massachusetts, 197 U. S. 11; Leonard i;. Vicksburg, &c., XX 

R. R. Co., 198 U. S. 416; Farrell v. O'Brien, 199 U. S. 89; South Caro- 
lina V. United States, 199 U. S. 437; Carfer v. Caldwell, 200 U. S. 293; 
Security Mutual Life Ins. Co. v. Prewitt, 202 U. S. 246; Kansas v. 
United States, 204 U. S. 331; The Winnebago, 205 U. S. 354; Lee v. 
New Jersey, 207 U. S. 67 ; St. Louis & Iron Mountain Railway w. Taylor, 
210 U. S. 281. 

In all Cases affecting Ambassadors, other public Ministers and Con- 
suls, and those in which a State shall be a Party, the supreme Court shall 
have original Jurisdiction. In all the other Cases before mentioned, the 
supreme Court shall have appellate Jurisdiction, both as to Law and 
Fact, with such Exceptions, and under such Regulations as the Con- 
gress shall make. 

Chisholm, ex., v. Georgia, 2 Dall. 419; Wiscart et al. v. Dauchy, 3 
Dall. 221; Marbury v. Madison, i Cr. 137; Durousseau et al. v. United 
States, 6 Cr. 307; Martin v. Hunter's Lessee, i Wh. 304; Cohens v. 
Virginia, 6 Wh. 234; Ex parte Kearney, 7 Wh. 38; Wayman v. South- 
ard, 10 Wh. i; Bank of the United States v. Halstead, 10 Wh. 51; 
United States v. Ortega, 1 1 Wh. 467; The Cherokee Nation v. the State 
of Georgia, 5 Pet. i; Ex parte Crane et als., 5 Pet. 189; The State of 
New Jersey v. The State of New York, 5 Pet. 283; Ex parte Sibbald v. 
United States, 12 Pet. 488; The State of Rhode Island v. The State of 
Massachusetts, 12 Pet. 657; State of Pennsylvania v. the Wheeling, 
&c.. Bridge Company, 13 How. 518; In re Kaine, 14 How. 103; Ableman 
V. Booth and United States v. Booth, 21 How. 506; Freeborn v. Smith, 
2 Wall. 160; Ex parte McCardle, 6 Wall. 318; Ex parte McCardle, 7 
Wall. 506; Ex parte Yerger, 8 Wall. 85; The Lucy, 8 Wall. 307; The 
Justices V. Murray, 9 Wall. 274; Pennsylvania v. Quicksilver Com- 
pany, 10 Wall. 553; Murdock v. City of Memphis, 20 Wall. 590; 
The Francis Wright, 105 U. S. 381; Bors v. Preston, iii U. S. 252; 
Ames V. Kansas, in U. S. 449; Clough v. Curtis, 134 U. S. 361; In re 
Neagle, 135 U. S. i; Craig v. Leitensdorfer, 127 U. S. 764; Wisconsin 
V. Pelican Ins. Co., 127 U. S. 265; United States v. Texas, 143 U. S. 
621 ; Mobile & Ohio R. Rd. v. Tenn., 153 U. S. 486; Woodruff v. Miss., 
162 U. S. 291; McCulIough V, Va., 172 U. S. 102; Louisiana ». Texas, 
176 U. S. I ; Wilkes County v. Coler, 180 U. S. 506; W. W. Cargill Co. 
V. Minnesota, 180 U. S. 452; Mallett v. North Carolina, 181 U. S. 589; 
United States v. Bitty, 208 U. S. 393. 

The Trial of all Crimes, except in Cases of Impeachment, shall be by 
Jury; and such Trial shall be held in the State where the said Crimes 
shall have been committed; but when not committed within any State, 
the Trial shall be at such Place or Places as the Congress may by Law 
have directed. 

Ex parte Milligan, 4 Wall. 2; Barton v. Barbour, 104 U.S. 126; Ex 
parte Wall., 107 U. S. 265; Callan v. Wilson, 127 U. S. 540; Nashville, 
Chattanooga, etc., Railway v. Alabama, 128 U. S. 96; Eilenbecker v. 
Plymouth County, 134 U. S. 31; Cook v. United States, 138 U. S. 157; 
In re Ross, 140 U. S. 453; Fong Yue Ting r.,United States, 149 U. S. 
698; In re Debs, petitioner, 158 U. S. 564; Thompson v. Utah, 170 



632 APPENDIX 

Appendix U. S. 343; Schick v. United States, 195 U. S. 65; Dorr v. United States, 

XX 195 U. S. 138; Matter of Strauss, 197 U. S. 324; Marvin v. Trout, 199 

U. S. 212; Martin v. Texas, 200 U. S. 316; Tinsley v. Treat, 205 U. S. 
20; Armour Packing Co. v. United States, 209 U. S. 56. 

Section 3. Treason against the United States, shall consist only in 
levying War against them, or in adhering to their Enemies, giving them 
Aid and Comfort. No Person shall be convicted of Treason unless on 
the Testimony of two Witnesses to the same overt Act, or on Confes- 
sion in open Court. 

United States v. The Insurgents, 2 Dall. 335; United States v. 
Mitchell, 2 Dall. 348; Ex parte BoUman and Swartwout, 4 Cr. 75; 
United States v. Aaron Burr, 4 Cr. 470. 

The Congress shall have power to declare the Punishment of Treason, 
but no Attainder of Treason shall work Corruption of Blood, or For- 
feiture except during the Life of the Person attainted. 

Bigelow V. Forest, 9 Wall. 339; Day v. Micou, 18 Wall. 156; Ex 
parte Lange, 18 Wall. 163; Wallach et al. v. Van Riswick, 92 U. S. 202. 

ARTICLE IV 

Section i. Full Faith and Credit shall be given in each State to the 
public Acts, Records, and judicial Proceedings of every other State. 
And the Congress m^y by general Laws prescribe the Manner in which 
such Acts, Records and Proceedings shall be proved, and the Effect 
thereof. 

Mills V. Duryee, 7 Cr, 481; Hampton v. McConnel, 3 Wh. 234; 
Mayhew v. Thatcher, 6 Wh. 129; Darby's Lessee v. Mayer, 10 Wh. 
465; The United States v. Amedy, 11 Wh. 392; Caldwell et al. ». Car- 
rington's Heirs, 9 Pet. 86; M'Elmoyle v. Cohen, 13 Pet. 312; The Bank 
of Augusta V. Earle, 13 Pet. 519; Bank of the State of Alabama v. 
Dalton, 9 How. 522; D'Arcy v. Ketchum, n How. 165; Christmas v. 
Russell, 5 Wall. 290; Green v. Van Buskirk, 7 Wall. 139; Paul v. Vir- 
ginia, 8 Wall. 168; Board of Public Works v. Columbia College, 17 
Wall. 521; Thompson v. Whitman, 18 Wall. 457; Bonaparte v. Tax 
Court, 104 U. S. 592; Robertson v. Pickrell, 109 U. S. 608; Brown et 
al. V. Houston, Collector, et al., 114 U. S. 622; Hanley v. Donoghue, 
116 U. S. i; Renaud v. Abbott, 116 U. S. 277; Chic, and Alton R. R. v. 
Wiggins Ferry Co., 119 U. S. 615; Cole v. Cunningham, 133 U. S. 107; 
Blount V. Walker, 134 U. S. 607; Texas & Pacific Ry. Co. v. Southern 
Pacific Co., 137 U. S. 48; Simmons v. Saul, 138 U. S. 439; Reynolds p. 
Stockton, 140 U. S. 254; Carpenter v. Strange, 141 U. S. 87; Glenn p. 
Garth, 147 U. S. 360; Huntington v. Attrill, 146 U. S. 657; Laing v. Rig- 
ney, 160 U. S. 531; Chicago, &c., Ry. Co. v. Sturm, 174 U. S. 710; 
Thormann v. Frame, 176 U. S. 350; Hancock Ntl. Bank v. Farnum, 176 
U. S. 640; Clarke v. Clarke, 178 U. S. 186; Wilkes County v. Coler, 180 
U. S. 506; W. W. Cargill Co. v. Minnesota, 180 U. S. 452; Johnson 
V. New York Life Ins. Co., 187 U. S. 491; Andrews v. Andrews, 188 
U. S. 14; Blackstone v. Miller, 188 U. S. 189; Finney v. Guy, 189 U. S. 
335; Anglo-American Provision Co. v. Davis Provision Co., 191 U. S. 



APPENDIX 633 

373; Wabash R. R. Co. v. Flannigan, 192 U. S. 29; German Savings Appendix 
Society v. Dormitzer, 192 U. S. 125; Wedding v. Meyler, 192 U. S. 573; XX 

National Mutual Bldg. & Loan Ass. v. Brahan, 193 U. S. 635; Minne- 
sota i». Northern Securities Co., 194 U. S. 48; National Exchange Bank 
V. Wiley, 195 U. S. 257; Jaster v. Currie, 198 U. S, 144; Harding v. 
Harding, 198 U. S. 317; Harris v. Balk, 198 U. S. 215; Louisville & 
Nashville R. R. v. Deer, 200 U. S. 176; Haddock v. Haddock, 201 
U. S. 562; Northern Assurance Co. v. Grand View Building Associa- 
tion, 203 U. S. 106; Wetmore v. Karrick, 205 U. S. 141; Old Wayne 
Life Association v. McDonough, 204 U. S. 8; Tilt v. Kelsey, 207 U. S. 
43; Brown v. Fletcher's Estate, 210 U. S. 82; Fauntleroy v. Lun, 210 
U. S. 230. 

Section 2. The Citizens of each State shall be entitled to all Privi- 
leges and Immunities of Citizens in the several States. 

Bank of United States v. Deveaux, 5 Cr. 61 ; Gassies v. Ballou, 6 Pet. 
761 ; The State of Rhode Island v. The Commonwealth of Massachu- 
setts, 12 Pet. 657; The Bank of Augusta v. Earle, 13 Pet. 519; Moore 
V. The People of the State of Illinois, 14 How. 13; Conner et al. v. 
Eliot et al., 18 How. 591 ; Dred Scott v. Sandford,i9 How. 393; Crandall 
V. State of Nevada, 6 Wall. 35; Woodruff v. Parham, 8 Wall. 123; Paul 
V. Virginia, 8 Wall. 168; Downham v. Alexandria Council, 10 Wall. 
173; Liverpool Insurance Company v. Massachusetts, 10 Wall. 566; 
Ward V. Maryland, 12 Wall. 418; Slaughterhouse Cases, 16 Wall. 36; 
Bradwell v. The State, 16 Wall. 130; Chemung Bank v. Lowery, 93 
U. S. 72; McCready v. Virginia, 94 U. S. 391; Brown v. Houston, 114 
U. S. 622; Pembina Mining Co. v. Penna., 125 U. S. 181; Kimmish v. 
Ball, 129 U. S. 217; Cole v. Cunningham, 133 U. S. 107; Leisy v. Hardin, 
135 U. S. 100; Minnesota v. Barber, 136 U. S. 313; McKane v. Durston, 
153 U. S. 684; Pittsburgh & So. Coal Co. v. Bates, 156 U. S. 577; Blake 
V. McClung, 172 U. S. 239; Blake v. McClung, 176 U. S. 59; Sully v. 
Am. Ntl. Bank, 178 U. S. 289; Reymann Brewing Co. v. Brister, 179 
U. S. 445; Williams v. Fears, 179 U. S. 270; Travellers Insurance Co. v. 
Connecticut, 185 U. S. 364; Chadwick v. Kelley, 187 U. S. 540; Dia- 
mond Glue Co. V. U. S. Glue Co., 187 U. S. 611 ; Blackstone v. Miller,i88 
U. S. 189; Anglo-American Provision Co. v. Davis Provision Co., 191 
U. S. 373; Chambers v. Baltimore and Ohio Railroad Co., 207 U.S. 
142; Hudson Water Co. v. McCarter, 209 U. S. 349. 

A Person charged in any State with Treason, Felony, or other Crime, 
who shall flee from Justice, and be found in another State, shall on 
demand of the executive Authority of the State from which he fled, be 
delivered up, to be removed to the State having Jurisdiction of the 
Crime. 

Holmes v. Jennison et al., 14 Pet. 540; Commonwealth of Kentucky 
V. Dennison, governor, 24 How. 66; Taylor v. Taintor, 16 Wall. 366; 
Carroll County v. Smith, iii U. S. 556; Ex parte Reggel, 114 U. S. 
642; Mahon v. Justice, 127 U. S. 700; Lascelles v. Georgia, 148 U. S. 
537; Pearce ». Texas, 155 U. S. 311; Utter v. Franklin, 172 U. S. 416; 
Munsey v. Clough, 196 U. S. 364; Appleyard v. Massachusetts, 203 
U. S. 222; Pettibone v. Nichols, 203 U. S. 192; McNichols v. Pease, 
207 U. S. 100; Bassing v. Cady, 208 U. S. 386; Pierce ». Creecy, 210 U. S. 
387. 



634 APPENDIX 

Appendix No Person held to Service or Labour in one State, under the Laws 

XX thereof, escaping into another, shall, in Consequence of any Law or 

Regulation therein, be discharged from such Service or Labour, but 

shall be delivered up on Claim of the Party to whom such Service or 

Labour may be due. 

Prigg V. The Commonwealth of Pennsylvania, i6 Pet. 539; Jones 
V. Van Zandt, 5 How. 215; Strader et al. v. Graham, 10 How. 82; Moore 
V. The People of the State of Illinois, 14 How. 13; Dred Scott v. Sand- 
ford, 19 How. 393; Ableman v. Booth and United States v. Booth, 21 
How. 506; Callan v. Wilson, 127 U. S. 540; Nashville, Chattanooga, 
etc., Rwy. v. Alabama, 128 U. S. 96. 

Section 3. New States may be admitted by the Congress into this 
Union; but no new State shall be formed or erected within the Juris- 
diction of any other State; nor any State be formed by the Junction of 
two or more States, or parts of States, without the Consent of the Legis- 
latures of the States concerned as well as of the Congress. 

American Insurance Company et al. v. Canter (356 bales cotton), 
I Pet. 511; Pollard's Lessee v. Hagan, 3 How. 212; Cross et al. v. Har- 
rison, 16 How. 164; Benson v. United States, 146 U. S. 325; Ward v. 
Race Horse, 163 U. S. 504; BoUn v. Nebraska, 176 U. S. 83; Louisiana 
V. Mississippi, 202 U. S. i. 

The Congress shall have Power to dispose of and make all needful 
Rules and Regulations respecting the Territory or other Property be- 
longing to the United States; and nothing in this Constitution shall be 
so construed as to Prejudice any Claims of the United States, or of any 
particular State. 

McCuUoch V. State of Maryland, 4 Wh. 316; American Insurance 
Company v. Canter, i Pet. 511; United States v. Gratiot et al., 14 
Pet. 526; United States v. Rogers, 4 How. 567; Cross et al. v. Harrison, 
16 How. 164; Mackey et al. v. Coxe, 18 How. 100; Gibson v. Chouteau, 
13 Wall. 92; Clinton v. Englebert, 13 Wall. 434; Beall v. New Mexico, 
16 Wall. 535; Davis ». Beason, 133 U. S. 333; Wisconsin Central R. Rd. 
Co. V. Price County, 133 U. S. 496; Cope v. Cope, 137 U. S. 682; Mor- 
mon Church V. United States, 136 U. S. i ; Jones v. United States, 137 
U. S. 202; St. Paul, Minneapolis, etc.. Railway Co. v. Phelps, 137 U. S. 
528; Talton V. Mayes, 163 U. S. 376; American Publishing Co. v. Fisher, 
166 U. S. 464; Camfield v. United States, 167 U. S. 518; Thompson v. 
Utah, 170 U. S. 343; Green Bay & Mississippi Canal Co. v. Patten 
Paper Co., 173 U. S. 179; Neely v. Henkel (No. i), 180 U. S. 109; De 
Lima ». Bidwell, 182 U. S. i; Dooley v. United States, 182 U. S. 222; 
Downes v. Bidwell, 182 U. S. 244; Fourteen Diamond Rings v. United 
States, 183 U. S. 176; Hawaii v. Mankichi, 190 U. S. 197; Binns r. 
United States, 194 U. S. 486; Dorr v. United States, 195 U. S. 138; 
Rassmussen v. United States, 197 U. S. 516; United States v. Heins- 
zen, 206 U. S. 370; Grafton v. United States, 206 U. S. 333; Ponce v. 
Roman Catholic Church, 210 U. S. 296. 

Section 4. The United States shall guarantee to every State in this 
Union a Republican Form of Government, and shall protect each of 



APPENDIX 635 

them against invasion; and on Application of the Legislature, or of the Appendix 
Executive (when the Legislature cannot be convened) against domestic XX 

Violence. 

Luther v. Borden, 7 How. i; Texas v. White, 7 Wall. 700; In re 
Duncan, 139 U. S. 449; Taylor et al. v. Beckham (No. i), 178 U. S. 548; 
South Carolina v. United States, 199 U. S. 437. 

ARTICLE V 

The Congress, whenever two thirds of both Houses shall deem it 
necessary, shall propose Amendments to this Constitution, or, on the 
Application of the Legislatures of two thirds of the several States, shall 
call a Convention for proposing Amendments, which, in either Case, 
shall be valid to all Intents and Purposes, as part of this Constitution, 
when ratified by the Legislatures of three fourths of the several States, 
or by Conventions in three fourths thereof, as the one or the other Mode 
of Ratification may be proposed by the Congress; Provided that no 
Amendment which may be made prior to the Year One Thousand eight 
hundred and eight shall in any Manner affect the first and fourth 
Clauses in the Ninth Section of the first Article; and that no State, 
without its Consent, shall be deprived of it's equal Suffrage in the Senate. 

Hollingsworth et al. v. Virginia, 3 Dall. 378. 

ARTICLE VI 

All Debts contracted and Engagements entered into, before the 
Adoption of this Constitution, shall be as valid against the United 
States under this Constitution, as under the Confederation. 

This Constitution, and the Laws of the United States which shall be 
made in Pursuance thereof; and all Treaties made, or which shall be 
made, under the Authority of the United States, shall be the supreme 
Law of the Land ; and the Judges in every State shall be bound thereby, 
any Thing in the Constitution or Laws of any State to the Contrary 
notwithstanding. 

Hayburn's Case, 2 Dall. 409; Ware v. Hylton, 3 Dall. 199; Calder 
and Wife v. Bull and Wife, 3 Dall. 386; Marbury v. Madison, i Cr. 
137; Chirac v. Chirac, 2 Wh. 259; McCulloch v. The State of Maryland, 
4 Wh. 316; Society v. New Haven, 8 Wh. 464; Gibbons v. Ogden, 9 Wh. 
I ; Foster and Elam v. Neilson, 2 Pet. 253; Buckner v. Finley, 2 Pet. 586; 
Worcester v. State of Georgia, 6 Pet. 515; Kennett et al. v. Chambers, 
14 How. 38; Dodge v. Woolsey, 18 How. 331; State of New York v. 
Dibble, 21 How. 366; Ableman v. Booth and United States v. Booth, 

21 How. 506; Sinnot v. Davenport, 22 How. 227; Foster v. Davenport, 

22 How. 244; Haver v. Yaker, 9 Wall. 32; Whitney v. Robertson, 124 
U. S. 190; In re Neagle, 135 U. S. i; Horner v. United States, 143 U. S. 
570; Fong Yue Ting v. United States, 149 U. S. 698; Cherokee Nation 
V. Kansas Ry. Co., 135 U. S. 641 ; Cook Co. v. Calumet & Chicago Canal 
Co., 138 U. S. 635; Gulf, Colorado & Santa Fe Rwy. Co. v. Hefley, 158 
U. S. 98; In re Quarles and Butler, 158 U. S. 532; Wards. Race Horse, 



636 



APPENDIX 



Appendix 163 U. S. 504; McClellan v. Chipman, 164 U. S. 347; Smyth v. Ames, 

XX 169 U. S. 466; Missouri, Kansas & Texas Railway Co. v. Haber, 169 

U. S. 613; Ohio V. Thomas, 173 U. S. 276; Lone Wolf v. Hitchcock, 
187 U. S. 553; South Carolina v. United States, 199 U. S. 437. 

The Senators and Representatives before mentioned, and the Mem- 
bers of the several State Legislatures, and all executive and judicial 
Officers, both of the United States and of the several States, shall be 
bound by Oath or Affirmation, to support this Constitution; but no 
religious Test shall ever be required as a Qualification to any Office or 
public Trust under the United States. 

Ex parte Garland, 4 Wall. 333; Davis v. Beason, 133 U. S. 333; 
Mormon Church v. United States, 136 U. S. I. 



ARTICLE VII 

The Ratification of the Conventions of nine States shall be sufficient 
for the Establishment of this Constitution between the States so rati- 
fying the Same. 

Done in Convention by the Unanimous Consent of the States present 
the Seventeenth Day of September in the Year of our Lord one 
thousand seven hundred and Eighty seven and of the Independence 
of the United States of America the Twelfth. In Witness whereof 
We have hereunto subscribed our Names, 

G9 WASHINGTON 

Presidt. and deputy from Virginia. 



John Langdon 
Nathaniel Gorham 
Wm. Saml. Johnson 
Alexander Hamilton 



Wil: Livingston 
David Brearley 



B. Franklin 
RoBT. Morris 
Thos. Fitzsimons 
James Wilson 



New Hampshire 

Massachusetts 

Connecticut 

New York 

New Jersey 

Pennsylvania 



Nicholas Gilman 
RuFUS King 
Roger Sherman 



Wm. Paterson 
Jona: Dayton 



Thomas Mifflin 
Geo. Clymer 
Jared Ingersoll 
Gouv. Morris 



Geo. Read 
John Dickinson 
Jaco: Broom 

James McHenry 
Danl. Carroll 

John Blair 



Wm. Blount 
Hu. Williamson 

J. Rutledge 
Charles Pinckney 



William Few 
Attest: 



APPENDIX 

Delaware 

Gunning Bedford, jun 
Richard Bassett 

Maryland 

Dan of St. Thos. Jenifer 

Virginia 

James Madison, Jr. 

North Carolina 

Richd Dobbs Spaight 

South Carolina 

Charles Cotesworth Pinckney 
Pierce Butler 

Georgia 
Abr. Baldwin 
WILLIAM JACKSON, Secretary. 



637 

Appendix 
XX 



Articles in Addition to, and Amendment of, the Consti- 
tution OF the United States of America, Proposed by 
Congress, and Ratified by the Legislatures of the 
Several States, Pursuant to the Fifth Article of the 
Original Constitution 

Eflenbecker v. Plymouth County, 134 U. S. 3. 

[article i] ^ 

Congress shall make no law respecting an establishment of religion, 
or prohibiting the free exercise thereof; or abridging the freedom of 



^ The first ten amendments to the 
Constitution of the United States 
were proposed to the legislatures of 
the several States by the First Con- 
gress, on the 25th of September, 
1789. They were ratified by the fol- 
lowing States, and the notifications 
of ratification by the governors 
thereof were successively communi- 
cated by the President to Congress : 
New Jersey, November 20, 1789; 
Maryland, December 19, 1789; 



North Carolina, December 22, 1789; 
South CaroHna, January 19, 1790; 
New Hampshire, January 25, 1790; 
Delaware, January 28, 1790; Penn- 
sylvania, March 10, 1790; New York, 
March 27, 1790; Rhode Island, June 
15. 1790; Vermont, November 3, 
1791, and Virginia, December 15, 
1 79 1. There is no evidence on the 
journals of Congress that the legis- 
latures of Connecticut, Georgia, and 
Massachusetts ratified them. 



638 APPENDIX 

Appendix speech, or of the press; or the right of the people peaceably to assemble, 
XX and to petition the Government for a redress of grievances. 

Terret et al. v. Taylor et al., 9 Cr. 43; Vidal et al. v. Girard et al„ 
2 How, 127; Ex parte Garland, 4 Wall. 333; United States v. Cruik- 
shank et al., 92 U. S. 542; Reynolds v. United States, 98 U. S. 145; 
Davis V. Beason, 133 U. S. 333; In re Rapier, 143 U. S. no; Horner v. 
United States, 143 U. S. 192; Bradfield v. Roberts, 175 U. S. 291 ; Turner 
V. Williams, 194 U. S. 279; Jack v. Kansas, 199 U. S. 372; Quick Bear 
V. Leupp, 210 U. S. 50. 

[article ii] 

A well regulated Militia, being necessary to the security of a free 
State, the right of the people to keep and bear Arms, shall not be in- 
fringed. 

Presser ». Illinois, 116 U. S. 252; Spies v. Illinois, 123 U. S. 131; 
Eilenbecker v, Plymouth County, 134 U. S. 31; Jack v. Kansas, 199 
U. S. 372. 

[article hi] 

No Soldier shall, in time of peace be quartered in any house, without 
the consent of the Owner, nor in time of war, but in a manner to be 
prescribed by law. 

[article iv] 

The right of the people to be secure in their persons, houses, papers, 
and effects, against unreasonable searches and seizures, shall not be 
violated, and no Warrants shall issue, but upon probable cause, sup- 
ported by Oath or affirmation, and particularly describing the place to 
be searched, and the persons or things to be seized. 

Smith V. State of Maryland, 18 How. 71; Murray's Lessee et al. 
V. Hoboken Land and Improvement Company, 18 How. 272; Ex parte 
Milligan, 4 Wall, 2; Boyd v. United States, 116 U. S. 616; Spies v. Illi- 
nois, 123 U. S. 131; Eilenbecker v. Plymouth County, 134 U. S. 31; 
Fong Yue Ting v. United States, 149 U. S. 698; Interstate Commerce 
Commission v. Brimson, 154 U. S. 447; In re Chapman, 166 U. S. 661; 
Adams i;. New York, 192 U. S. 585; Morris v. Hitchcock, 194 U. S. 384; 
Public Clearing House v. Coyne, 194 U. S. 497; Interstate Commerce 
Commission v. Baird, 194 U. S. 25; Jack v. Kansas, 199 U. S. 372; 
Hale V. Henkel, 201 U. S, 43; Consolidated Rendering Co, v. Vermont, 
207 U. S. 541 ; American Tobacco Co. v. Werckmeiser, 207 U. S. 284. 

[article v] 

No person shall be held to answer for a capital, or otherwise infamous 
crime, unless on a presentment or indictment of a Grand Jury, except 
in cases arising in the land or naval forces, or in the Militia, when in 
actual service in time of War or public danger; nor shall any person be 
subject for the same offence to be twice put in jeopardy of life or limb ; 
nor shall be compelled in any criminal case to be a witness against him- 
self, nor be deprived of life, liberty, or property, without due process of 



APPENDIX 639 

law; nor shall private property be taken for public use, without just Appendix 
compensation. XX 

United States r. Perez, 9 Wh. 579; Barron v. The City of Baltimore, 
7 Pet. 243; Fox ». Ohio, 5 How. 410; West River Bridge Company v. 
Dix et al., 6 How. 507; Mitchell v. Harmony, 13 How. 115; Moore, ex., 
V. The People of the State of Illinois, 14 How. 13; Murray's Lessee et 
al. V. Hoboken Land and Improvement Company, 18 How. 272; 
Dynes v. Hoover, 20 How. 65; Withers v. Buckley et al., 20 How. 84; 
Gilman v. The City of Sheboygan, 2 Black, 510; Ex parte Milligan, 4 
Wall. 2; Twitchell v. The Commonwealth, 7 Wall. 321; Hepburn v. 
Griswold, 8 Wall. 603; Miller v. United States, 11 Wall. 268; Legal 
Tender Cases, 12 Wall. 457; Pumpelly v. Green Bay Company, 13 
Wall. 166; Osborn v. Nicholson, 13 Wall. 654; Ex parte Lange, 18 Wall 
163; Kohl et al. v. United States, 91 U. S. 367; Cole v. La Grange, 113 
U. S. i; Ex parte Wilson, 114 U. S. 417; Brown v. Grant, 116 U. S. 
207; Boyd V. United States, 116 U.S. 616; Mackin v. United States, 117 
U. S. 348; Ex parte Bain, 121 U. S. i; Parkinson v. United States, 121 
U. S. 281; Spies V. Illinois, 123 U. S. 131; Sands v. Manistee River Im- 
provement Company, 123 U. S. 288; Mugler v. Kansas, 123 U. S. 623; 
Great Falls Manufacturing Company v. The Attorney-General, 124 
U. S. 581 ; United States v. De Walt, 128 U. S. 393; HuHng v. Kaw Val- 
ley Railway and Improvement Company, 130 U. S. 559; Freeland ». 
Williams, 131 U. S. 405; Cross v. North CaroHna, 132 U. S. 131; Man- 
ning V. French, 133 U. S. 186; Searle v. School Dist. No. 2, 133 U. S. 553; 
Palmer z/. McMahon, 133 U. S. 660; Eilenbecker v. Plymouth County, 
134 U. S. 31; Chic, Mil. &'St. Paul Rwy. Co. v. Minnesota, 134 
U. S, 418; Wheeler II. Jackson, 137 U. S. 245; Holden v. Minnesota, 
137 U. S. 245; Caldwell v. Texas, 137 U. S. 692; Cherokee Nation v, 
Kansas Ry. Co., 135 U. S. 641; Kaukauna Water Power Co. v. Miss. 
Canal Co., 142 U. S. 254; New Orleans v. N. O. Water W'ks, 142 U. S. 
79; Counselman v. Hitchcock, 142 U. S. 547; Simmonds!^. United States, 
142 U. S. 148; Horn Silver Mining Co. v. N. Y., 143 U. S. 305; Hallin- 
ger V. Davis, 146 U. S. 314; Shoemaker v. United States, 147 U. S. 
282; Thorington v. Montgomery, 147 U. S. 490; Yesler v. Wash'n 
Harbor Line Coms'rs, 146 U. S. 646; Monongahela Nav. Co. v. United 
States, 148 U. S. 312; Fong Yue Ting v. United States, 149 U. S. 698; 
In re Lennon, 150 U. S. 393; Pitts. C, C. & St. L. v. Backus, 154 U. S. 
421 ; Interstate Com. Comsn. v. Brimson, 154 U. S. 447; Pearce v. Texas, 

155 U. S. 311; Linford v. Ellison, 155 U. S. 503; Andrews v. Swartz, 

156 U. S. 272; Pittsburgh & Southern Coal Co. v. La., 156 U. S. 590; 
St. L. & S. F. Rwy. Co. v. Gill, 156 U. S. 649; Johnson v. Sayre, 158 
U. S. 109; Sweety. Rechel, 159 U. S. 380; Browne. Walker, 161 U.S. 
591; Wong Wingv. United States, 163 U. S. 228; Talton v. Mayes, 163 
U. S. 376; Robertson v. Baldwin, 165 U. S. 275; Bauman v. Ross, 167 
U. S. 548; Wilson V. Lambert, 168 U. S. 611; Tinsley v. Anderson, 171 
U, S. loi ; Green Bay &c. Canal Co. v. Patten Paper Co., 172 U. S. 58; 
Norwood V. Baker, 172 U. S. 269; Scranton v. Wheeler, 179 U. S. 141 5 
French v. Barber Asphalt Paving Co., 181 U. S. 324; Wight v. Davidson, 
181 U. S. 371; Tonawanda v. Lyon, 181 U. S. 389; Capital City Dairy 
Co. V. Ohio, 183 U. S. 238; Hanover National Bank». Moyses, 186 U. S. 
181 ; Dreyer v. Illinois, 187 U. S. 71 ; Lone Wolf v. Hitchcock, 187 U. S. 
553; United States v. Lynah, 188 U. S. 445; The Japanese Immigrant 
Case, 189 U.S. 86; Hawaii v. Monkichi, 190 U. S. 197; Bedford v. United 



640 APPENDIX 

Appendix States, 192 U. S. 217; Buttfield v. Stranahan, 192 U. S. 470; Adams v. 

XX New York, 192 U. S. 585; Minneapolis & St. Louis R. R. Co. v. Minne- 

sota, 193 U. S. 53; Beavers v. Henkel, 194 U. S. 73; Morris v. Hitch- 
cock, 194 U. S. 384; Lloyd V. Dallison, 194 U. S. 445; Public Clear- 
ing House V. Coyne, 194 U. S. 497; Turner v. Williams, 194 U. S. 279; 
Shepard v. Barron, 194 U. S. 553; Interstate Commerce Commission 
V. Baird, 194 U. S. 25; Kepner v. United States, 195 U. S. 100; Mc- 
Cray v. United States, 195 U. S. 27; Rassmussen v. United States, 
197 U. S. 516; United States v. Ju Toy, 198 U. S. 253; Jack v. Kansas, 
199 U. S. 372; South Carolina v. United States, 199 U. S. 437; Trono 
V. United States, 199 U. S. 521; Chicago, B. & Q. Ry. Co. v. Drainage 
Commissioners, 200 U. S. 561; Southern Pacific R. R. Co. v. United 
States, 200 U. S. 341; Howard v. Kentucky, 200 U. S. 164; Hale », 
Henkel, 201 U. S. 43; McAlister v. Henkel, 201 U. S. 90; Nelson v. 
United States, 201 U. S. 92; Sawyer v. United States, 202 U. S. 150; 
Matter of Moran, 203 U. S. 96; Union Bridge Co. v. United States, 
204 U. S. 364; Martin v. District of Columbia, 205 U. S. 135; Barring- 
ton V. Missouri, 205 U. S. 483; United States v. Heinszen, 206 U. S. 
370; Ellis V. United States, 206 U. S. 246; Grafton v. United States, 
206 U. S. 333; Hunter j;. Pittsburgh, 207 U. S. 161; Taylor v. United 
States, 207 U. S. 120; Shoener v. Pennsylvania, 207 U. S. 188; Con- 
solidated Rendering Co. v. Vermont, 207 U. S. 541 ; American Tobacco 
Co. V. Werckmeister, 207 U. S. 284; Adair v. United States, 204 
U. S. 161 ; Bassing v. Cady, 208 U. S. 386; Twining v. New Jersey, 2H 
U. S. 78; United States ex rel. Atty. Gen. v. Delaware & H. Co., 213 
U. S. 366. 

[article vi] 

In all criminal prosecutions, the accused shall enjoy the right to a 
speedy and public trial, by an impartial jury of the State and district 
wherein the crime shall have been committed, which district shall have 
been previously ascertained by law, and to be informed of the nature 
and cause of the accusation ; to be confronted with the witnesses against 
him ; to have compulsory process for obtaining witnesses in his favour, 
and to have the Assistance of Counsel for his defence. 

United States v. Cooledge, i Wh. 415; Ex parte Kearney, 7 Wh. 38; 
United States v. Mills, 7 Pet. 142; Barron v. City of Baltimore, 7 Pet. 
243; Fox V. Ohio, 5 How. 410; Withers v. Buckley et al., 20 How. 84; 
Ex parte Milligan, 4 Wall. 2; Twitchell v. The Commonwealth, 7 Wall. 
321; Miller v. The United States, 11 Wall. 268; United States v. Cook, 
17 Wall. 168; United States v. Cruikshank et al., 92 U. S. 542; Spies 
V. Illinois, 123 U. S. 131; Eilenbecker v. Plymouth Co., 134 U. S. 31; 
Jones V. United States, 137 U. S. 202; Cook v. United States, 138 U. S. 
157; In re Ross, 140 U. S. 453; Hallinger v. Davis, 146 U. S. 314; Mat- 
tox V. United States, 156 U. S. 237; Bergemann v. Becker, 157 U. S. 
655; Rosen v. United States, 161 U. S. 29; United States v. Zucker, 161 
U. S. 475; Wong Wing v. United States, 163 U. S. 228; Motes v. United 
States, 178 U. S. 458; Fidelity and Deposit Co. v. United States, 187 
U. S. 315; Hawaii v. Mankichi, 190 U. S. 197; Lloyd v. Dallison, 194 
U. S. 445; West V. Louisiana, 194 U. S. 258; Turner v. Williams, 194 
U. S. 279; Schick V. United States, 195 U. S. 65; Dorr v. United States, 
195 U. S. 138; Rassmussen v. United States, 197 U. S. 516; Beavers v. 
Haubert, 198 U. S. 77; Marvin v. Trout, 199 U. S. 212; Jack v. Kansas, 



APPENDIX 641 

199 U. S. 372; Martin v. Texas, 200 U. S. 316; Howard v. Kentucky, Appendix 

200 U. S. 164; Sawyer v. United States, 202 U. S. 150; Tinsley v. Treat, XX 
205 U. S. 20; Ughbanks r. Armstrong, 208 U. S. 481; Armour Packing 

Co. V. United States, 209 U, S. 56. 

[article vii] 

In suits at comnion law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be preserved, and no fact 
tried by a jury, shall be otherwise reexamined in any Court of the United 
States, than according to the rules of the common law. 

United States r. La Vengeance, 3 Dall. 297; Bank of Columbia v. 
Okely, 4 Wh. 235; Parsons v. Bedford et al., 3 Pet. 433; Lessee of 
Livingston v. Moore et al., 7 Pet. 469; Webster v. Reid, 11 How. 437; 
State of Pennsylvania v. The Wheeling, &c., Bridge Company et al., 
13 How. 518; The Justices r. Murray, 9 Wall. 274; Edwards v. Elliott 
et al., 21 Wall. 532; Pearson v. Yewdall, 95 U. S. 294; McElrath v. 
United States, 102 U. S. 426; Callan v. Wilson, 127 U. S. 540; Ark. 
Valley Land and Cattle Co. v. Mann, 130 U. S. 69; Whitehead v. Shat- 
tuck, 138 U. S. 146; Scott V. Neely, 140 U. S. 106; Cates v. Allen, 149 
U. S. 451; Fong Yue Ting v. United States, 149 U. S. 698; Chappell 
V. United States, 160 U. S. 499; Coughran v. Bigelow, 164 U. S. 301; 
Walker v. New Mexico & Southern Pacific Railroad, 165 U. S. 593; 
Chicago, Burlington & Quincy v. Chicago, 166 U. S. 226; American 
Pub. Co. V. Fisher, 166 U. S. 464; Guthrie Ntl. Bank v. Guthrie, 173 
U. S. 528; Rassmussen v. United States, 197 U. S. 516; Marvin ». 
Trout, 199 U. S. 212; Jack v. Kansas, 199 U. S. 372; Fidelity Mutual 
Life Ins. Co. v. Clark, 203 U. S. 64. 

[article viii] 

Excessive bail shall not be required, nor excessive fines imposed, 
nor cruel and unusual punishments inflicted. 

Pervear v. Commonwealth, 5 Wall. 475; Manning v. French, 133 
U. S. 186; Eilenbecker v. Plymouth County, 134 U. S. 31; In re 
Kemmler, 136 U. S. 436; McElvaine v. Brush, 142 U. S. 155; O'Neill v. 
Vermont, 144 U. S. 323; McDonald v. Massachusetts, 180 U. S. 
311; Jack V. Kansas, 199 U. S. 372; Ughbanks v. Armstrong, 208 U. S. 
481. 

[article ix] 

The enumeration in the Constitution, of certain rights, shall not be 
construed to deny or disparage others retained by the people. 

Lessee of Livingston v. Moore et al., 7 Pet. 469. 

[article x] 

The powers not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States respectively, 
or to the people. 

Chisholm, ex., v. State of Georgia, 2 Dall. 419; Hollingsworth et al. 



642 APPENDIX 

Appendix »• The State of Virginia, 3 Dall. 378; Martin v. Hunter's Lessee, i 

XX Wh. 304; McCulIoch v. State of Maryland, 4 Wh. 316; Anderson v. 

Dunn, 6 Wh. 204; Cohens v. Virginia, 6 Wh. 264; Osborn v. United 
States Bank, 9 Wh, 738; Buckner v. Finley, 2 Pet. 586; Ableman ». 
Booth, 21 How. 506; The Collector v. Day, 11 Wall. 113; Claflin v. 
Houseman, assignee, 93 U. S. 130; Inman Steamship Company v. 
Tinker, 94 U. S. 238; Church i». Kelsey, 121 U. S. 282; Ouachita Packet 
Co. V. Aiken, 121 U. S. 444; W. U. Tel. Co. v. Pendleton, 122 U. S. 347; 
Bowman v. Chicago and Northwestern Rwy Co., 125 U. S. 465; Mahon 
V. Justice, 127 U. S. 700; Leisy v. Hardin, 135 U. S. 100; Manchester 
V. Mass., 139 U. S. 240; Pollock v. Farmers' Loan & Trust Co., 157 U. 
S. 429; Forsyth v. Hammond, 166 U. S. 506; St. Anthony Falls Water 
Power Co. v. St. Paul Water Commissioners, 168 U. S. 349; Missouri 
Kansas & Texas Railway Co. v. Haber, 169 U. S. 613; Hancock Mutual 
Life Ins. Co. v. Warren, 181 U. S. 73; Kansas v. Colorado, 185 U. S. 
125; Andrews v. Andrews, 188 U. S. 14; Northern Securities Co. v. 
United States, 193 U. S. 197; Turner r. Williams, 194 U. S. 279; Mc- 
Cray v. United States, 195 U. S. 27; Central of Georgia Ry. Co. v. 
Murphey, 196 U. S. 194; Matter of Heff (Indian), 197 U. S. 488; South 
Carolina v. United States, 199 U. S. 437; Jack v. Kansas, 199 U. S. 372; 
Hodges i;. United States, 203 U. S. i; Kansas v. Colorado, 206 U. S. 46. 

ARTICLE XI ^ 

The Judicial power of the United States shall not be construed to 
extend to any suit in law or equity, commenced or prosecuted against 
one of the United States by Citizens of another State, or by Citizens or 
Subjects of any Foreign State. 

State of Georgia v. Brailsford et al., 2 Dall. 402; Chisholm, ex., 
t». State of Georgia, 2 Dall. 419; HolHngsworth et al. v. Virginia, 3 Dall. 
378 ; Cohens v. Virginia, 6 Wh. 264; Osborn v. Bank of United States, 9 
Wh. 738 ; Bank of United States v. The Planters' Bank, 9 Wh. 904; The 
Governor of Georgia v. Juan Madrazo, i Pet. no; Cherokee Nation v. 
State of Georgia, 5 Pet. i ; Briscoe v. The Bank of the Commonwealth 
of Kentucky, 11 Pet. 257; Curran r. State of Arkansas et al., 15 How. 
.304; New Hampshire v. Louisiana, 108 U. S. 76; Virginia Coupon Cases, 
114 U. S. 270; Hagood V. Southern, 117 U. S. 52; In re Ayres, 123 U. S. 
443; Lincoln County v. Luning, 133 U. S. 527; Coupon Cases, 135 U. S. 
^62; Pennoyer v. McConnaughy, 140 U. S. i; In re Tyler, 149 U. S. 
164; Reagan v. Farmers' Loan and Trust Co., 154 U. S. 362; Reagan 
V. Mercantile Trust Co., 154 U. S. 413; Scott v. Donald, 165 U. S. 58; 
Tindal v. Wesley, 167 U. S. 204; Smyth v. Ames, 169 U. S. 466; Fitts 
■V. McGhee, 172 U. S. 516; Louisiana v. Texas, 176 U. S. i; Smith v. 
Reeves, 178 U. S. 436; Scranton v. Wheeler, 179 U. S. 141; Illinois 
Central Railroad Co. v. Adams, 180 U. S. 28; Prout r. Starr, 188 U. S. 
537; South Dakota v. North Carolina, 192 U. S. 286; Chandler v. Dix, 

* The Eleventh Amendment to and was declared in a message from 

the Constitution of the United States the President to Congress, dated 

was proposed to the legislatures of the 8th of January, 1798, to have 

the several states by the Third Con- been ratified by the legislatures of 

gress, on the 5th of March, 1794; three fourths of the states. 



APPENDIX 643 

194 U. S. 590; Jacobson v. Massachusetts, 197 U. S. 11; Graham v. Appendix 
Folsom, 200 U. S. 248; Gunter v. Atlantic Coast Line, 200 U. S. 273; XX 

McNeill V. Southern Railway Co., 202 U. S. 543; Mississippi R. R. 
Commission v. Illinois Central R. R., 203 U. 335; Scully v. Bird, 209 
U. S. 481 ; Ex parte Young, 209 U. S. 123. 

ARTICLE XII ^ 

The Electors shall meet in their respective states and vote by ballot 
for President and Vice-President, one of whom, at least, shall not be 
an inhabitant of the same state with themselves; they shall name in 
their ballots the person voted for as President, and in distinct ballots 
the person voted for as Vice-President, and they shall make distinct 
lists of all persons voted for as President, and of all persons voted for 
as Vice-President, and of the number of votes for each, which lists 
they shall sign and certify, and transmit sealed to the seat of the gov- 
ernment of the United States, directed to the President of the Senate; 
— The President of the Senate shall, in presence of the Senate and 
House of Representatives, open all the certificates and the votes shall 
then be counted; — The person having the greatest number of votes 
for President, shall be the President, if such number be a major- 
ity of the whole number of Electors appointed; and if no person 
have such majority, then from the persons having the highest numbers 
not exceeding three on the list of those voted for as President, the House 
of Representatives shall choose immediately, by ballot, the President. 
But in choosing the President, the votes shall be taken by states, the 
representation from each state having one vote ; a quorum for this pur- 
pose shall consist of a member or members from two thirds of the states, 
and a majority of all the states shall be necessary to a choice. And if 
the House of Representatives shall not choose a President whenever 
the right of choice shall devolve upon them, before the fourth day of 
March next following, then the Vice-President shall act as President, 
as in the case of the death or other constitutional disability of the 
President. — The person having the greatest number of votes as Vice- 
President, shall be the Vice-President, if such number be a majority of 
the whole number of Electors appointed, and if no person have a ma- 
jority, then from the two highest numbers on the list, the Senate shall 
choose the Vice-President; a quorum for the purpose shall consist of 
two thirds of the whole number of Senators, and a majority of the 
whole number shall be necessary to a choice. But no person constitu- 
tionally ineligible to the office of President shall be eligible to that of 
Vice-President of the United States. 

In re Green, 134 U. S. 377. 

* The Twelfth Amendment to the second article; and was declared, in 

Constitution of the United States a proclamation of the Secretary of 

was proposed to the legislatures of State, dated the 25th of September, 

the several States by the Eighth 1804, to have been ratified by the 

Congress, on the 12th of December, legislatures of three fourths of the 

1803, in lieu of the original third States, 
paragraph of the first section of the 



644 



APPENDIX 



Appendix 
XX 



ARTICLE XIII * 

Section i. Neither slavery nor involuntary servitude, except as 
a punishment for crime whereof the party shall have been duly con- 
victed, shall exist within the United States, or any place subject to their 
jurisdiction. 

Section 2. Congress shall have power to enforce this article by 
appropriate legislation. 

Dred Scott v. Sandford, 19 How. 393; White v. Hart, 13 Wall. 646; 
Osborn v. Nicholson, 13 Wall. 654; Slaughter- House Cases, 16 Wall. 36; 
Ex parte Virginia, 100 U. S. 339; Civil Rights Case, 109 U. S. 3; Plessy 
V. Ferguson, 163 U. S. 537; Robertson v. Baldwin, 165 U. S. 275; 
Clyattf. United States, 197 U. S. 207; Hodges v. United States, 203 
U. S. I. 

ARTICLE XIV 2 

Section i. All persons born or naturalized in the United States, and 
subject to the jurisdiction thereof, are citizens of the United States 
and of the State wherein they reside. No State shall make or enforce any 

Ohio, Illinois, West Virginia, Kan- 
sas, Maine, Nevada, Missouri, In- 
diana, Minnesota, New Hampshire, 
Massachusetts, Nebraska, Iowa, Ar- 
kansas, Florida, North Carolina, 
Alabama, South Carolina, and Louis- 
iana, being three fourths and more 
of the several States of the Union, 
have ratified the fourteenth article 
of amendment to the Constitution 
of the United States, duly proposed 
by two thirds of each House of the 
Thirty-ninth Congress: Therefore 
Resolved, That said fourteenth art- 
icle is hereby declared to be a part 
of the Constitution of the United 
States, and it shall be duly promul- 
gated as such by the Secretary of 
State." The Secretary of State ac- 
cordingly issued a proclamation, 
dated the 28th of July, 1868, declar- 
ing that the proposed fourteenth 
amendment had been ratified, in the 
manner hereafter mentioned, by the 
legislatures of thirty of the thirty- 
six states, viz: Connecticut, June 30, 
1866; New Hampshire, July 7, 1866; 
Tennessee, July 19, 1866; New Jer- 
sey, September 11, 1866 (and the 
legislature of the same state passed 
a resolution in April, 1868, to with- 
draw its consent to it); Oregon, 



1 The Thirteenth Amendment to 
thelConstitution of the United States 
was proposed to the legislatures of 
the several States by the Thirty- 
eighth Congress, on the ist of Feb- 
ruary, 1865, and was declared, in a 
proclamation of the Secretary of 
State, dated the i8th of December, 

1865, to have been ratified by the 
legislatures of twenty-seven of the 
thirty-six states, viz: Illinois, Rhode 
Island, Michigan, Maryland, New 
York, West Virginia, Maine, Kansas, 
Massachusetts, Pennsylvania, Vir- 
ginia, Ohio, Missouri, Nevada, Indi- 
ana, Louisiana, Minnesota, Wis- 
consin, Vermont, Tennessee, Arkan- 
sas, Connecticut, New Hampshire, 
South Carolina, Alabama, North 
Carolina, and Georgia. 

* The Fourteenth Amendment to 
the Constitution of the United States 
was proposed to the legislatures of 
the several states by the Thirty- 
ninth Congress, on the i6th of June, 

1866. On the 2ist of July, 1868, 
Congress adopted and transmitted 
to the Department of State a con- 
current resolution declaring that 
"the legislatures of the States of 
Connecticut, Tennessee, New Jer- 
sey, Oregon, Vermont, New York, 



^APPENDIX 645 

law which shall abridge the privileges or immunities of citizens of the '^ Appendix 
United States; nor shall any State deprive any person of life, liberty, XX 

or property, without due process of law ; nor deny to any person within 
its jurisdiction the equal protection of the laws. —' 

Strauder v. West Virginia, 100 U. S. 303; Virginia v. Rives, 100 
U. S. 313; Ex parte Va., 100 U. S. 339; Missouri v. Lewis, loi U. S. 22; 
Civil Rights Cases, 109 U. S. 3; Louisiana v. New Orleans, 109 U. S. 
285; Hurtado v. California, no U. S. 516; Hagar r. Reclamation Dist., 
Ill U. S. 701; Elk V. Wilkins, 112 U. S. 94; Head v. Amoskeag Mfg. 
Co., 113 U. S. 9; Barbier v. Connolly, 113 U. S. 27; Provident Inst. 
V. Jersey City, 113 U. S. 506; Soon Hing v. Crowley, 113 U. S. 703; 
Wurtsi/. Hoagland, 114 U. S. 606; Ky. R. Rd. Tax Cases, 115 U. S. 
321; Campbell v. Holt, 115 U. S. 620; Presser v. Illinois, 116 U. S. 252; 
Stone V. Farmers' Loan and Trust Co., 116 U. S. 307; Arrowsmith 
r. Harmoning, 118 U. S. 194; Yick Wo v. Hopkins, 118 U. S. 356; Santa 
Clara Co. v. S. Pacific R. Rd., 118 U. S. 394; Phila. Fire Assn. v. N. Y., 
119 U. S. no; Schmidt v. Cobb, 119 U. S. 286; Baldwin v. Franks 120 
U. S. 678; Hayes v. Missouri, 120 U. S. 68; Church v. Kelsey, 121 U. S. 
282; Pembina Mining Co. v. Penna., 125 U. S. 181; Spencer z;. Merchant, 
125 U. S. 345; Dow V. Beidelman, 125 U. S. 680; Bank of Redemption v. 
Boston, 125 U. S. 60; Ro Bards v. Lamb, 127 U. S. 58; Mo. Pac. Rwy. 
Co. V. Mackey, 127 U. S. 205; Minneapolis and St. Louis Rwy. v. 
Herrick, 127 U. S. 210; Powell v. Penna., 127 U. S. 678; Kiddf. Pearson 
128 U. S. i; Nashville, Chattanooga, &c., Rwy. v. Alabama, 128 U. S. 
96; Walston V. Nevin, 128 U. S. 578; Minneapolis and St. Louis Rwy. 
V. Beckwith, 129 U. S. 26; Dent v. West Va., 129 U. S. 114; Huling v. 
Kaw Valley Rwy. and Improvement Co., 130 U. S. 559; Freeland v. 
Williams, 131 U. S. 405; Cross v. North Carolina, 132 U. S. 131 ; Pennie 
V. Reis, 132 U. S. 464; Sugg v. Thornton, 132 U. S. 524; Davis v. Bea- 
son, 133 U. S. 333; Eilenbecker v. Plymouth Co., 134 U. S. 31; Bell 
Gap R. Rd. Co. v. Penna., 134 U. S. 232; Chicago, Milwaukee & St. 

September 19, 1866; Vermont, No- ruary 7, 1867; Wisconsin, February 

vember 9, 1866; Georgia rejected it 13, 1867; Pennsylvania, February 

November 13, 1866, and ratified it 13, 1867; Michigan, February 15, 

July 21, 1868; North Carolina re- 1867; Massachusetts, March 20, 

jected it December 4, 1866, and rati- 1867; Nebraska, June 15,1867; Iowa, 

fied it July 4, 1868; South Carolina April 3, 1868; Arkansas, April 6, 

rejected it December 20, 1866, and 1868; Florida, June 8, 1868; Louisi- 

ratified it July 9, 1868; New York ana, July 9, 1868; and Alabama, 

ratified it January 10, 1867; Ohio July 13, 1868. Georgia again rati- 

ratified it January II, 1867 (and the fied the amendment February 2, 

legislature of the same state passed 1870. Texas rejected it November 

a resolution in January, 1868, to i, 1866, and ratified it February 18, 

withdraw its consent to it); Illinois 1870. Virginia rejected it January 

ratified it January 15, 1867; West 19, 1867, and ratified it October 8, 

Virginia, January 16, 1867; Kansas, 1869. The amendment was rejected 

January 18, 1867; Maine, January by Kentucky January 10, 1867; by 

19, 1867; Nevada, January 22, 1867; Delaware, February 8, 1867; by 

Missouri, January 26, 1867; Indiana, Maryland, March 23, 1867, and 

January 20, 1867; Minnesota, Feb- was not afterwards ratified by either 

ruary i, 1867; Rhode Island, Feb- state. 



646 APPENDIX 

Appendix Paul Rwy. v. Minnesota, 134 U. S. 418; Home Ins. Co. v. N. Y., 134 

XX U. S. 594; Louisville & Nashville R. Rd. Co. v. Woodson, 134 U. S. 

614; Leisy v. Hardin, 135 U. S. 100; In re Kemmler, 136 U. S. 436; 
York V. Texas, 137 U. S. 15; Crowley v. Christensen, 137 U. S. 89; 
Wheeler v. Jackson, 137 U. S. 245; Holden v. Minnesota, 137 U. S. 
483; In re Converse, 137 U. S. 624; Caldwell ». Texas, 137 U. S. 692; 
Kauflfman v. Wooters, 138 U. S. 285; Leeper v. Texas, 139 U. S. 462; 
In re Manning, 139 U. S. 504; Natal v. Louisiana, 139 U. S. 621; In 
re Duncan, 139 U. S. 449; In re Shibuya Jugiro, 139 U. S. 291; Lent 
V. Tillson, 140 U. S. 316; New Orleans v. N. O. Water W'ks, 142 
U. S. 79; McElvaine v. Brush, 142 U. S. 155; Kaukauna Water Power 
Co. V. Miss. Canal Co., 142 U. S. 254; Charlotte, Augusta & Col. 
R. Rd. Co. V. Gibbes, 142 U. S. 386; Pacific Ex. Co. v. Siebert, 142 
U. S., 339 ; Horn Silver Mining Co. v. N. Y., 143 U. S. 305; Budd 
V. N. Y., 143 U. S. 517; Schwab v. Berggren, 143 U.S. 442; Fielden 
V. Illinois, 143 U. S. 452; N. Y. v. Squire, 144 U. S. 175; Brown v. 
Smart, 144 U. S. 454; McPherson v. Blacker, 146 U. S. i; Morley v. 
Lake Shore & Mich. Southern Ry. Co., 146 U. S. 162; Hallinger 
V. Davis, 146 U. S. 314; Yeslerr. Washington Harbor Line Com'rs., 
146 U. S. 646; Butler v. Goreley, 146 U. S. 303; Southern Pacific Co. 
V. Denton, 146 U. S. 202; Thorington v. Montgomery, 147 U. S. 490; 
Giozza V. Tiernan, 148 U. S. 657; Paulsen v. Portland, 149 U. S. 30; 
Minn. & St. L. Rwy. Co. v. Emmons, 149 U. S. 364; Columbus So. 
Rwy, Co. V. Wright, 151 U. S. 470; In re Frederick, 149 U. S. 70; Mc- 
Nulty V. Calif., 149 U. S. 645; Lees v. United States, 150 U. S. 476; 
Lawton v. Steele, 152 U. S. 133; Montana Co. v. St. Louis Mining 
Co., 152 U. S. 160; Duncan v. Missouri, 152 U. S. 377; McKane v. 
Durston, 153 U. S. 684; Marchant v. Penna. R. R. Co., 153 U. S. 380; 
Brass v. Stoeser, 153 U. S. 391 ; Scott v. McNeal, 154 U. S. 34; Reagan 
V. Far. Loan & Trust Co., 154 U. S. 362; P., C, C. & St. L. R. R. Co., 
V. Backus, 154 U. S. 421; Interstate Com. Comsn. v. Brimson, 154 U. S. 
447; Reagan v. Mercantile Trust Co., 154 U. S. 447; Pearce v. Texas, 
155 U. S. 311 ; Pittsburg & So. Coal Co. v. La., 156 U. S. 590; Andrews 
V. Swartz, 156 U. S. 272; St. L. & S. F. Rwy. Co. v. Gill, 156 U. S. 649; 
Stevens, admr., v. Nichols, 157 U. S. 370; Beremann v. Begcker, 157 
U.S. 655; In re Quarles and Butler. 158U. S. 532; Gray r. Connecticut, 

159 U. S. 74; Central Land Co. v. Laidley, 159 U. S. 103; Moore v. Mis- 
souri, 159 U. S. 673; Winona & St. Peter Land Co. v. Minn., 159 U. S. 
528; Iowa Cent. Ry. Co. v. Iowa, 160 U. S. 389; Eldridge v. Trezevant, 

160 U. S. 452; Laing v. Rigney, 160 U. S. 531; Gibson v. Miss., 162 
U. S. 565; Western Union Telegraph Co. v. Taggart, 163 U. S. i; 
Lowe V. Kansas, 163 U. S. 81; Plessy v. Ferguson, 163 U. S. 537; Tal- 
ton V. Mayes, 163 U. S. 376; Fallbrook Irrigation District v. Bradley, 
164 U. S. 112; Mo. Pac. Ry. Co. v. Nebraska, 164 U. S. 403; 
Covington &c. Turnpike Co. v. Sandford, 164 U. S. 578; St. Louis 
&c. Ry. Co. V. Mathews, 165 U. S. i; Gulf &c. Ry. Co. v. Ellis, 165 
U. S. 150; Jones v. Brim, 165 U. S. 180; Adams Ex. Co. v. Ohio, 165 
U. S. 194; Western Union Tel. Co. v. Indiana, 165 U. S. 304; Allgeyer 
V. Louisiana, 165 U. S. 578; Allen v. Georgia, 166 U. S. 138; Chicago 
&c. R. R. Co. V. Chicago, 166 U. S, 226; Gladson v. Minn., 166 U. S. 
427; Sentell v. New Orleans &c. R. R. Co., 166 U. S. 698; Davis v. 
Mass., 167 U. S. 43; Turner v. New York, 168 U. S. 90; Hodgson v. 
Vermont, 168 U. S. 262; Nobles v. Georgia, 168 U. S. 398; McHenry 



APPENDIX 647 

V. Alford, 168 U. S. 651; Holden v. Hardy, 169 U. S. 366; Savings Appendix' 

& Loan Society v. Multnomah County, 169 U. S. 421 ; Smyth v. Ames, XX 

169 U= S. 466; Wilson V. North Carolina, 169 U. S. 586; United States 

V. Wong Kim Ark, 169 U. S. 649; Williams v. Miss., 170 U. S. 213; 

Galveston &c. Ry. Co. v. Texas, 170 U. S. 226; Magoun v. 111. Trust & 

Savings Bank, 170 U. S. 283; Williams v. Eggleston, 170 U. S. 304; 

Tinsley v. Anderson, 171 U. S. loi; King v. MuUins, 171 U. S. 404; 

New York v. Roberts, 171 U. S. 658; Meyer v. Richmond, 172 U. S. 

82; Blake v. McClung, 172 U. S. 239; Orient Ins. Co. v. Daggs, 172 

U. S. 557; Wilson V. Eureka City, 173 U. S. 32; Central Loan & Trust 

Co. V. Campbell Commission Co., 173 U. S. 84; Dewey v. Des Moines, 

173 U. S. 193; St. Louis &c. Ry. Co. v. Paul, 173. U. S. 404; Henderson 

Bridge Co. v. Henderson City, 173 U. S. 592; Lake Shore &c. Ry. Co. 

V. Smith, 173 U. S. 684; Atchison &c. R. R. Co. v. Matthews, 174 

U. S. 96; Brown v. N. J., 175 U. S. 172; TuUis v. Lake Erie &c. R. R. 

Co., 175 U. S. 348; Cumming v. Richmond County Board of Education, 

175 U. S. 528; BoUn V. Nebraska, 176 U. S. 83; Clark v. Kansas City, 

176 U. S. 114; Roller v. Holly, 176 U. S. 398; Weyerhaueser v. Minn., 

176 U. S. 550; Maxwell v. Dow, 176 U. S. 581; Gundling v. Chicago, 

177 U. S. 183; Ohio Oil Co. v. Indiana, 177 U. S.-I90; Louisville, &c., 
R. R. Co. V. Schmidt, 177 U. S. 230; Saranac Land & Timber Co. v. 
Comptroller of N. Y., 177 U. S. 318; Carter v. Texas, 177 U. S. 442; 
L'Hote V. New Orleans, 177 U. S. 587; Sully v. Am. Ntl. Bank, 178 
U. S. 289; Wheeler v. New York &c. R. R. Co., 178 U. S. 321; Taylor 
V. Beckham, 178 U. S. 548; Am. Sugar Refining Co. v. Louisiana, 179 
U. S. 89; Williams v. Fears, 179 U. S. 270; New York v. Barker, 179 
U. S. 279; Wisconsin &c. R. R. Co. v. Jacobson, 179 U. S. 287; Mason 
V. Missouri, 179 U. S. 328; Devtne v. Los Angeles, 202 U. S. 313; 
Cox V. Texas, 202 U. S. 446; National Council v. State Council, 203 
U. S. 151; St. Mary's Petroleum Co. v. West Virginia, 203 U. S. 183; 
Northwestern Life Ins. Co. v. Riggs, 203 U. S. 243; Atlantic Coast 
Line v. Florida. 203 U. S. 256; Seaboard Air Line t'. Florida, 203 U. S. 
261; Fairhaven & Westville R. R. Co., v. New Haven, 203 U. S. 379; 
Cahen v. Brewster, 203 U. S. 543; Gatewood v. North Carolina, 203 
U. S. 531; Security Trust Co. v. Lexington, 203 U. S. 323; Martin 
V. Pittsburg & Lake Erie R. R., 203 U. S. 284; Board of Education v, 
Illinois, 203 U. S. 553; Hodges v. United States, 203 U. S. i; Ala- 
bama & Vicksburg Railway Co. v. Mississippi R. R. Commission, 

203 U. S. 496; Hatch V. Reardon, 204 U. S. 152; Ballard v. Hunter, 

204 U. S. 241; Western Turf Association v, Greenberg, 204 U. S. 359; 
Cleveland Electric Railway Co. v. Cleveland, 204 U. S. 116; Old 
Wayne Life Association v. McDonough, 204 U. S. 8; Chicago, Bur- 
lington & Quincy Railway Co. v. Babcock, 204 U. S. 585; Walker v. 
McLoud, 204 U. S. 302; Coffey v. Harlan County, 204 U. S. 659; 
Bacon v. Walker, 204 U. S. 311; Bachtel v. Wilson, 204 U. S. 36; 
Barrington v. Missouri, 205 U. S. 483; Halter v. Nebraska, 205 U. S. 
34; Wilmington Mining Co. v. Fulton, 205 U. S. 60; Tracy v. Ginz- 
berg, 205 U. S. 170; Patterson ». Colorado, 205 U. S. 454; Chanler v. 
Kelsey, 205 U. S. 466; Sauer v. City of New York, 206 U. S, 536; 
Atlantic Coast Line v. North Carolina Corporation Commission, 206 
U. S. i; Buck V. Beach, 206 U. S. 392; Bernheimer v. Converse, 206 
U. S. 516; Hunter v. Pittsburgh, 207 U. S. 161; Polk v. Mutual Re- 
serve Fund Association, 207 U. S. 310; Consolidated Rendering Co. 



648 APPENDIX 

Appendix »• Vermont, 207 U. S. 541; Raymond v. Chicago Traction Co., 207 

XX U. S. 20; Central of Georgia Railway v. Wright, 207 U. S. 127; Bit- 

terman v. Louisville & Nashville Railroad, 207 U. S. 205; Lee v. New 
Jersey, 207 U. S. 67; Ozan Lumber Co. v. Union County Bank, 207 
U. S. 251; Seaboard Air Line v. Seegers, 207 U. S. 73; Heath & Mil- 
ligan Co. v. Worst, 207 U. S. 338; Interstate Railway Co. v. Massa- 
chusetts, 207 U. S. 79; Cosmopolitan Club v. Virginia, 208 U. S. 378; 
Hairston v. Danville and Western Railway, 208 U. S. 598; Northern 
Pacific Railway v. Duluth, 208 U. S. 583; Disconto Gesellschaft v. 
Umbreit, 208 U. S. 570; Ughbanks v. Armstrong, 208 U. S. 481; Mul- 
ler V. Oregon, 208 U. S. 412; Darnell & Son v. Memphis, 208 U. S. 113; 
Central Railroad Co. v. Jersey City, 209 U. S. 473 ; Longyear v. Toolan, 
209 U. S. 414; Hudson Water Co. v. McCarter, 209 U. S. 349; Ex parte 
Young, 209 U. S. 123; Thompson v. Kentucky, 209 U. S. 340; Lang v. 
New Jersey, 209 U. S. 467; Londoner v. Denver, 210 U. S. 373; Delmar 
Jockey Club v. Missouri, 210 U. S. 324; Cleveland, Cincinnati, etc., 
Railway Co. v. Porter, 210 U. S. 177; Berea College v. Kentucky, 211 
U. S. 45 ; Twining v. New Jersey, 21 1 U. S. 78 ; Home Teleph. and Teleg. 
Co. V. Los Angeles, 211 U. S. 265; Lemieux v. Young, 211 U. S. 489; 
Beers v. Glynn, 211 U. S. 477; McClean v. Arkansas, 211 U. S. 539; 
Paddell v. New York, 211 U. S. 446; Rusch v. John Duncan Land & 
Min. Co. 211 U. S. 526; North American Cold Storage Co. v. Chicago, 

211 U. S. 306; New York ex rel. Sibz v. Hesterberg, 211 U. S. 310; 
Thomas v. Texas, 212 U. S. 278; Hammond Packing Co. v. Arkansas, 

212 U. S. 322; Waters-Pierce Co. v. Texas. 212 U. S. 86; Knoxville v. 
Knoxville Water Co. 212 U. S. i. New York C. & H. R. R, Co. v. United 
States, 212 U. S. 481 ; Louisville & N. R. Co. v. Central Stock- Yards Co., 
212 U. S. 132; Ontario Land Co. v. York, 212 U. S. 152; Mozer v. Pea- 
body, 212 U. S. 78; Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159; 
Keerl v. Montana, 213 U. S. 135; Bonner w. Gonnan, 213 U. S. 86; Welch 
V. Swasey, 214 U. S. 91 ; District of Columbia v. Brooke, 214 U. S. 138; 
Interstate Com. Commission v. Illinois C. R. Co., 215 U. S. 452; South- 
ern R. Co. V. Greene, 216 U. S. 400; Louisville & N. R. Co. v. Gaston, 

216 U. S. 418; Alvarez y Sanchez v. United States, 216 U. S. 167; Mis- 
souri P. R. Co. V. Kansas ex rel. Taylor, 216 U. S. 262; Laurel Hill Cem- 
etery V. San Francisco, 216 U. S. 358; Southwestern Oil Co. v. Texas, 

217 U. S. 114; Brown-Fomian Co. v. Kentucky, 217 U. S. 563; Williams 
V. Arkansas, 217U. S. 79; Standard Oil Co. w. Tennessee ex rel. Cales, 
217 U. S. 413; Missouri P. R. Co. v. Nebraska, 217 U. S. 196; Kidd, 
D. & R. Co. V. Musselman Grocer Co., 217 U. S. 461 ; Grenada Lumber 
Co. V. Mississippi, 217 U. S. 433; Louisville & N. R. Co. v. Milton, 218 
U. S. 36; Watson v. Maryland, 218 U. S. 173; Western U. Teleg. Co. 
V. Commercial Milling Co., 218 U. S. 406; Griffith v. Connecticut, 218 
U. S. 563; United States v. Heinze, 218 U. S. 532; Ling Su Fass v. 
United States, 218 U. S. 302; Illinois C. R. Co. v. Kentucky, 218 
U. S. 551; Cincinnati, I. & W. R. Co. v. Connersville, 218 U. S. 336; 
Shevlin-Carpenter Co. v. Minnesota, 218 U. S. 57; Franklin v. South 
Carolina, 218 U. S. i6i; Ong Chang Wing v. United States, 218 
U. S. 272. 

Section 2. Representatives shall be apportioned among the several 
States according to their respective numbers, counting the whole num- 
ber of persons in each State, excluding Indians not taxed. But when 



APPENDIX 649 

the right to vote at any election for the choice of electors for President Appendix 
and Vice-President of the United States, Representatives in Congress, XX 

the Executive and Judicial officers of a State, or the members of the 
Legislature thereof, is denied to any of the male inhabitants of such 
State, being twenty-one years of age, and citizens of the United States, 
or in any way abridged, except for participation in rebellion, or other 
crime, the basis of representation therein shall be reduced in the pro- 
portion which the number of such male citizens shall bear to the whole 
number of male citizens twenty-one years of age in such State. 

McPherson v. Blacker, 146 U. S. i. 

Section 3. No person shall be a Senator or Representative in Con- 
gress, or elector of President and Vice-President, or hold any office, 
civil or military, under the United States, or under any State, who, 
having previously taken an oath, as a member of Congress, or as an 
officer of the United States, or as a member of any State legislature, or 
as an executive or judicial officer of any State, to support the Constitu- 
tion of the United States, shall have engaged in insurrection or rebel- 
lion against the same, or given aid or comfort to the enemies thereof. 
But Congress may by a vote of two thirds of each House, remove such 
disability. 

Section 4. The validity of the public debt of the United States, 
authorized by law, including debts incurred for payment of pensions 
and bounties for services in suppressing insurrection or rebellion, shall 
not be questioned. But neither the United States nor any State shall 
assume or pay any debt or obligation incurred in aid of insurrection 
or rebellion against the United States, or any claim for the loss or eman- 
cipation of any slave; but all such debts, obligations and claims shall 
be held illegal and void. 

Section 5. The Congress shall have power to enforce, by appropri- 
ate legislation, the provisions of this article. 

Crandall v. The State of Nevada, 6 Wall. 35; Paul v. Virginia, 8 
Wall. 168; Ward v. Maryland, 12 Wall. 418; Slaughter- House Cases, 
16 Wall. 36; Brad well v. The State, 16 Wall. 130; Bartemeyer v. 
Iowa, 18 Wall. 129; Minor ». Happersett, 21 Wall. 162; Walker c. Sau- 
vinet, 92 U. S. 90; Kennard v. Louisiana ex rel. Morgan, 92 U. S. 
480; United States v. Cruikshank, 92 U. S. 542; Munn v. Illinois, 94 
U.S. 113. 

ARTICLE XV * 

Section i. The right of citizens of the United States to vote shall 
not be denied or abridged by the United States or by any State on ac- 
count of race, color, or previous condition of servitude. 

^ The Fifteenth Amendment to Congress on the 27th of February, 

the Constitution of the United States 1869, and was declared, in a procla- 

was proposed to the legislatures of mation of the Secretary of State, 

the several states by the Fortieth dated March 30, 1870, to have been 



650 APPENDIX 

Appendix Section 2. The Congress shall have power to enforce this article 
XX by appropriate legislation. 

United States v. Reese et al., 92 U. S. 214; United States v. Cruik- 
shank et al., 92 U. S. 542; Neal v. Delaware, 103 U. S. 370; United 
States V. Waddell et al., 112 U. S. 76; Ex parte Yarbrough, no U. S. 
651; McPherson v. Blacker, 146 U. S. i; James v. Bowman, 190 U. S. 
127; Hodges V. United States, 203 U. S. i. 

RATIFICATIONS OF THE CONSTITUTION 

The Constitution was adopted by a convention of the States Sep- 
tember 17, 1787, and was subsequently ratified by the several States, 
in the following order, viz.: — 

Delaware, December 7, 1787. 
Pennsylvania, DecemlDer 12, 1787. 
New Jersey, December 18, 1787. , 
Georgia, January 2, 1788. 
Connecticut, January 9, 1788. 
Massachusetts, February 6, 1 788. 
Maryland, April 28, 1788. 
South Carolina, May 23, 1788. 
New Hampshire, June 21, 1788. 
Virginia, June 26, 1788. 
New York, July 26, 1788. 
North Carolina, November 21, 1789. 
Rhode Island, May 29, 1790. 

The State of Vermont, by convention, ratified the Constitution on 
the loth of January, 1791, and was, by an Act of Congress of the i8th 
of February, 1791, "received and admitted into this Union as a new 
and entire member of the United States of America." 

ratified by the legislatures of twenty- March 1 7- April 14, 1869 (and the 

nine of the thirty-seven States. The legislature of the same State passed 

dates of these ratifications (arranged a resolution January 5, 1870, to 

in the order of their reception at the withdraw its consent to it) ; New 

Department of State) were: From Hampshire, July 7, 1869; Nevada, 

North Carolina, March 5, 1869; March i, 1869; Vermont, October 

West Virginia, March 3, 1869; Mas- 21, 1869; Virginia, October 8, 1869; 

sachusetts, March 9-12, 1869; Wis- Missouri, January 10, 1870; Mis- 

consin, March 9, 1869; Maine, sissippi, January 15-17, 1870; Ohio, 

March 12, 1869; Louisiana, March January 27, 1870; Iowa, February 

5, 1869; Michigan, March 8, 1869; 3, 1870; Kansas. January 18-19, 

South Carolina, March 16, 1869; 1870; Minnesota, February 19, 1870; 

Pennsylvania, March 26, 1869; Ar- Rhode Island, January 18, 1870; 

kansas, March 30, 1869; Connecti- Nebraska, February 17, 1870; Texas, 

cut. May 19, 1869; Florida, June 15, February 18, 1870. The State of 

1869; Illinois, March 5, 1869; In- Georgia also ratified the amendment 

diana, May 13-14, 1869; New York, February 2, 1870. 



APPENDIX 651 

Appendix 
RATIFICATIONS OF THE AMENDMENTS TO THE CONSTITUTION XX 

The first ten of the preceding articles of amendment (with two others 
which were not ratified by the requisite number of States) were sub- 
mitted to the several State legislatures by a resolution of Congress 
which passed on the 25th of September, 1789, at the first session of the 
First Congress, and were ratified by the legislatures of the following 
States: — 

New Jersey, November 20, 1789. 
Maryland, December 19, 1789. 
North Carolina, December 22, 1789. 
South Carolina, January 19, 1790. 
New Hampshire, January 25, 1790. 
Delaware, January 28, 1790. 
Pennsylvania, March 10, 1790. 
New York, March 27, 1790. 
Rhode Island, June 15, 1790. 
Vermont, November 3, 1791. 
Virginia, December 15, 1791. 

The acts of the legislatures of the States ratifying these amendments 
were transmitted by the governors to the President, and by him com- 
municated to Congress. The legislatures of Massachusetts, Connecti- 
cut, and Georgia do not appear by the record to have ratified them. 

The Eleventh Article was submitted to the legislatures of the several 
States by a resolution of Congress passed on the 5th of March, 1794, 
at the first session of the Third Congress ; and on the 8th of January, 
1798, at the second session of the Fifth Congress, it was declared by the 
President, in a message to the two Houses of Congress, to have been 
adopted by the legislatures of three fourths of the States, there being 
at that time sixteen States in the Union. 

The Twelfth Article was submitted to the legislatures of the several 
States, there being then seventeen States, by a resolution of Congress 
passed on the 12th of December, 1803, at the first session of the Eighth 
Congress, and was ratified by the legislatures of three fourths of the 
States in 1804, according to a proclamation of the Secretary of State 
dated the 25th of September, 1804. 

The Thirteenth Article was submitted to the legislatures of the several 
States, there being then thirty-six States, by a resolution of Congress 
passed on the 1st of February, 1865, at the second session of the Thirty- 
eighth Congress, and was ratified, according to a proclamation of the 
Secretary of State dated December 18, 1865, by the legislatures of the 
following States: — 

Illinois, February I, 1865. 
Rhode Island, February 2, 1865. 
Michigan, February 2, 1865. 
Maryland, February 3, 1865. 



652 APPENDIX 

Appendix New York, February 3, 1865. 

XX West Virginia, February 3, 1865. 

Maine, February 7, 1865. 
Kansas, February 7, 1865. 
Massachusetts, February 8, 1865. 
Pennsylvania, February 8, 1865. 
Virginia, February 9, 1865. 
Ohio, February 10, 1865. 
Missouri, February 10, 1865. 
Indiana, February 16, 1865. 
Nevada, February 16, 1865. 
Louisiana, February 17, 1865. 
Minnesota, February 23, 1865. 
Wisconsin, March i, 1865. 
Vermont, March 9, 1865. 
Tennessee, April 7, 1865. 
Arkansas, April 20, 1865. 
Connecticut, May 5, 1865, 
New Hampshire, July i, 1865. 
South Carolina, November 13, 1865. 
Alabama, December 2, 1865. 
North Carolina, December 4, 1865. 
Georgia, December 9, 1865. 

The following States not enumerated in the proclamation of the Sec- 
retary of State also ratified this amendment: — 

Oregon, December 11, 1865. 
California, December 20, 1865. 
Florida, December 28, 1865. 
New Jersey, January 23, 1866. 
Iowa, January 24, 1866. 
Texas, February 18, 1870. 

The Fourteenth Article was submitted to the legislatures of the 
several States, there being then thirty-seven States, by a resolution of 
Congress passed on the i6th of June, 1866, at the first session of the 
Thirty-Ninth Congress, and was ratified, according to a proclamation 
of the Secretary of State dated July 28, 1868, by the legislatures of the 
following States: — 

Connecticut, June 30, 1866. 
New Hampshire, July 7, 1866. 
Tennessee, July 19, 1866. 
""- New Jersey, September 11, 1866.^ 
Oregon, September 19, 1866.* 
Vermont, November 9, 1866. 

* New Jersey withdrew her con- ^ Oregon withdrew her consent 

sent to the ratification in April, to the ratification, 15th of October, 
1868. 1868. 



APPENDIX 653 

New York, January 10, 1867. Appendix 

Ohio, January 11, 1867.^ XX 

Illinois, January 15, 1867. 

West Virginia, January 16, 1 867. 

Kansas, January 18, 1867. 

Maine, January 19, 1867. 

Nevada, January 22, 1867. 

Missouri, January 26, 1867. 

Indiana, January 29, 1867. 

Minnesota, February i, 1867. 

Rhode Island, February 7, 1867. 

Wisconsin, February 13, 1867. 

Pennsylvania, February 13, 1867. 

Michigan, February 15, 1867. 

Massachusetts, March 20, 1867. 

Nebraska, June 15, 1867. 

Iowa, April 3, 1868. 

Arkansas, April 6, 1868. 

Florida, June 9, 1868. 

North Carolina, July 4, 1868.* 

Louisiana, July 9, 1868. 

South Carolina, July 9, i868.'» 

Alabama, July 13, 1868. 

Georgia, July 21, 1868.2 

The State of Virginia ratified this amendment on the 8th of October, 
1869, subsequent to the date of the proclamation of the Secretary of 
State.' 

The States of Delaware, Maryland, Kentucky, and Texas rejected 
the amendment. 

The Fifteenth Article was submitted to the legislatures of the several 
States, there being then thirty-seven States, by a resolution of Congress 
passed on the 27th of February, 1869, at the first session of the Forty- 
first Congress; and was ratified, according to a proclamation of the 
Secretary of State dated March 30, 1870, by the legislatures of the fol- 
lowing States: — 

Nevada, March i, 1869. 
West Virginia, March 3, 1869. 
North Carolina, March 5, 1869. 
Louisiana, March 5, 1869. 
Illinois, March 5, 1869. 
Michigan, March 8, 1869. 
Wisconsin, March 9, 1869. 
Massachusetts, March 12, 1869. 
Maine, March 12, 1869. 

* Ohio withdrew her consent to * North Carolina, South Caro- 

the ratification in January, 1868. Una, Georgia, and Virginia had pre- 

viously rejected the amendment. 



654 APPENDIX 

Appendix South Carolina, March i6, 1869. 

XX Pennsylvania, March 26, 1869. 

Arkansas, March 30, 1869. 
New York, April 14, 1869.^ 
Indiana, May 14, 1869. 
Connecticut, May 19, 1869. 
Florida, June 15, 1869. 
New Hampshire, July 7, 1869. 
Virginia, October 8, 1869. 
Vermont, October 21, 1869. 
Alabama, November 24, 1869. 
Missouri, January 10, 1870. 
Mississippi, January 17, 1870. 
Rhode Island, January 18, 1870. 
Kansas, January 19, 1870. 
Ohio, January 27, 1870.* 
Georgia, February 2, 1870. 
Iowa, February 3, 1870. 
Nebraska, February 17, 1870. 
Texas, February 18, 1870. 
Minnesota, February 19, 1870. 

The State of New Jersey ratified this amendment on the 21st of 
February, 1871, subsequent to the date of the proclamation of the Sec- 
retary of State.' 

The States of California, Delaware, Kentucky, Maryland, Oregon, 
and Tennessee rejected this amendment. 

* New York withdrew her consent the amendment May 4, 1869. 

to the ratification, January 5, 1870. ' New Jersey had previously re- 

* Ohio had previously rejected jected the amendment. 



INDEX 



INDEX 



Abolitionists, in Free Soil party, 287. 

Absolutism, under York and Tudor kings, 88, 89; 
under the first Stuarts, 90. 

Accused persona, rights of, secured by 6th Amend- 
ment, 238-240. 

Achaian League, the, 20, 109, no, in, 348. 

Act of Settlement, the (1700), 223, 297. 

Active (sloop), 333- 

Adams, President John, inaugural address, quoted, 
117, 118; first Vice-Pres., 220; and the election of 
1800, 248; and the French Directory, 304seqq.; and 
the Essex Junto, 312; 126, 127, 128, 131, 132, 165, 
168, i69n., 250, 323. 

Adams, President John Quincy, his Memoirs quoted, 
Sn., 6, 36; orders Journal of Federal Convention 
printed, 33; " era of good feeling " came to an end 
with his election, 282; and the admission of Ar- 
kansas, 283; 9, 393 and n. 

Adams, Samuel, and the ratification of the Constitu- 
tion, 209; 126, 127, 283. 

Admiralty jurisdiction, defined by Chief Justice Taney, 
337- 

/Ethelbehrt, laws of, S7n. 

Aggregation, bases of England's strength as a colo- 
nizing power, 100. 

Alabama, admission of, 278; ordinance of secession, 
338; her remodeled constitution construed by Su- 
preme Court, 375, 376; and the negro, 376. 

Alabama (cruiser), not a privateer, 338. 

Alaska, in 1852, 398, 399- 

Albany, meeting at (1694), 120; meeting at (i7S4) in 
anticipation of French and Indian War, 121 ; Frank- 
lin's plan for system of colonial defense submitted 
thereat, 121; Madison's statement of its purpose, 
121. 

Albany Convention (1684), 120. 

Alchred, of Northumbria, 62. 

Alexander, John McK., 508. 

Alexander, Sir William, 278. 

Alien Laws (1798), 304, 30s; few prosecutions under, 
305; attacked by Kentucky and Virginia Resolu- 
tions, 306, 307. 

Aliens, status of children of, bom in U. S., 357, 358. 

Alison, Sir A., History of Europe, quoted, 3890. 

Alleghany Mountains, 123. 

Amendments. See under Constitution of U. S. 

America, English colonies in. See English colonies. 

American and English constitutional law, oneness of, 
353. 

American Bar Association, 470. 

American Constitution. See Constitution of U. S. 

American constitutional history, starting-point of, S3. 

American historical scholarship and foreign expound- 
ers of the Constitution, 5. 

American law, unification of, 466. 

American Museum, quoted, 494. 

American statesmen, sterility of, down to 1781, 135. 

Ames, Fisher, 209, 210. 

Angeln, 53 and n. 

Anglo-Saxon kingdoms in the kingdom of England, 
57, 58. 

Anglo-Saxon migrations in sth and 17th centuries, 51, 
52 seqq. 

Annapolis, Congress at, 159 and n. 

Annapolis Convention (1786), address of, drafted by 
Hamilton, 26; its outcome, 26; and the call for a 
Federal Convention, 167; 31, 415, 468. 

Anti-Federalist party, opposed to ratification of 
Constitution, 281 and n., 282; succeeded by first 
Republican party, 283. 



Anti-monopoly statute of 21 James I, accepted as basic 
in U. S. jurisprudence, 434; later modified in Eng- 
land, 435. 

Anti-Nebraska men, first name of new Republican 
party, 294. 

Anti-slavery clause in Jefferson's ordinance for gov- 
ernment of N. W. Territory, 257. 

Anti-trust Act (1890). .See Sherman Anti-Trust Act. 

Anti-trust statutes prior to Sherman Act, 432, 433. 

Appropriations, sole power to appropriate given to 
House of Representatives, igSn. 

Aragon, 88. 

Argentine Republic, U. S. type of federal union repro- 
duced in, 459. 

Aristotle, Constitutions, no and n.; Politics, 377n. 

Arkansas, admission of, 283; ordinance of secession, 
338; constitution of 1868 construed by Supreme 
Court, 346; 289. 

Arms, right to keep and bear, 232, 233. 

Articles of Confederation of the United Colonies of 
New England (1643), full text of, 477-482. 

Articles of Confederation (1777), a servile copy of an 
ancient type of federal league, 10, 20, 21, 117, 135; 
no fertility of resource shown in, 21; original draft 
of, by Franklin, 21; P. Webster on the defects of, 
38, 39. 141-143. 152. 153; history of, 130 seqq.; 
Franklin's draft the basis of plan reported by Com- 
mittee, and accepted by Congress, 130; ratified by 
all states, 130; debate on quota clause, 131, 132; 
and on method of voting, 132 seqq.; inherent weak- 
ness of, 135, 136; their only novelty, 135, 136; con- 
tained no grant of taxing power, 136, 137; lack of 
taxing power cause of failure of, 139; no provision 
for federal judiciary, 152; Congress seeks amend- 
ment of, by states, 156; and the N. W. Territory, 
255, 382; provincisJ spirit embodied in, 299; status 
of citizens under, 348, 349; ineffectiveness of, 458; 
full text of, 517-524; signers of, 524, 525; 122, 151. 

Assize of Clarendon. See Clarendon, Assize of. 

Assize courts, 61, 86. 

Assize of arms, 71, 232. 

Assizes, introduced by Henry IT, 71. 

" As.sociation, The," advises non-importation leagues, 
128. 

Augustine, St., 57 and n. 

Australia, 459. 

Australian colonies in 1852, 398. 

Avalon, Hugh of, 73. 

Baeda (Bede), Ecclesiastical History, 57 and n., 58. 

Bagehot, Walter, The English Constitution, quoted, 
413. 

Bail, excessive, prohibited by 8th Amendment, 242. 

Baldwin, AbraJiam, 198, 226. 

Baldwin, Simeon E., The Narrowing Circle of Indi- 
vidual Rights, quoted, 301, 405, 407, 408, 409, 4nn., 
448; his views criticized, 409. 

Baltimore, Cecilius C, Lord, 98 and n. 

Baltimore, George C, Lord, 98 and n. 

Baltimore, Congress at, 159 n. 

Bancroft, George, History of the Constitution, quoted, 
8, n, 37, 135, i6in., 175; History of the U. S., 258, 
27on.; his confusion as to plans submitted to the 
Convention, 9, 37, 38 ; a rhapsodist, 1 1 ; and P. Web- 
ster's pamphlet, 27n.; and the Pinckney plan, 35; 
his " Connecticut plan " an invention, 38. 

Bairon court, in Maryland, 102. 

Baronage, the, 73, 74, 75. 

Barons, appear in person in Parliament of 1295, 83. 

Bassett. Richard, 174. 226. 



658 



INDEX 



BiUavlan RriiuMIc, 117. 

Brach, A/('Mc!/'()/«c.v uttd Industrial Trusts, quoted, 435. 

Beatty, John, J08, 

Bccket, Thomas i\, 70. 

Bedfoixl, Gunning, ig8. 

Benjamin, Jiulah I'., aps 

Bonsvin, I'^Rlini, ^17. 

Bcnioii. 1 iioini(s II., Thirty Years' View, 257 and n., 
.us, ,ti8 and u,, ,U9, .180. 

Bcrltshirc (K"Sla"d), 58. 

Bicameral Couricss, lii-st proposed by P. Webster, 
ISO. 151. 

BId.ilo, lidward. 137. 

BiKolow, Melville M., Hislorv qf Procedure, 7Sn. 

Bigod, Honor. ICail of Norfolk, 83. 

Bill of RIkIxs Uf'8o\ Ji.j. 2.\3, J97. 

Bill of rights, absence of, in Constitution, iai; pro- 
posed l>y R. II. Lee, a^. 

Billet iiiii of tmotw, ijj. 

Bills of rights of American state constitutions, the 
hesl ei'i(omes of the Knglish constitutional system 
as mo.HiK-il by revolutions of 1O40 and 1688, 7g; 
frenneiii'v ot. Hi. 

Blackstoivc, .Sii \V., his Commentaries, the guide of 
Anierican statesmen in drafting state constitutions, 
70. 80: 76. iS"!, .?f>i, .?0,s. 

Blair, .Tohn, 174, 350. 

Bland. Klib;Uil. \ j6. \,\o, 145. 

Bla(ob(oi .1, ,) \i«( ice .Samuel, opinion In Chicago R. R. r. 
Mim\., piloted, 435. 

Blount, Williavn, ii(y. 

Boanl of trade, the. X20. 

Bohun, Huniphiry dc, Kjirl of Hereford and Essex, 
83. 

Boroughs, representatives of. In Parliament, 83. 87. 

B»x«ton, i>ort of, cUwcd, lis, nd; and the Boston Port 
Bill. W7;5S. 

Boston Port Bill, I2,s-t27. 

Bouilinot, lilias, Ptxssident of Congress, 150. 

Bo\nuiarics, northw^est. dispute with Russia concern- 
ing, JOJ. 

Bo\itmy, M., Ktuile tie Droil tVHSfiiuHoHnel , 7sn. 

Bo^emaiv. .lolm t... fiistory of A/<irv/i)H./, 101 and n. 

Bnadley. .liiiMi.v .Uv»eph P.. opinion in Civil Rights 
cases. Quoted, .157; and in Ix^loup p. Mobile, 4tg; 
;1S4- 

Brannon, The Fourteenth Amen,1menl, quoted, ,170. 

Brazil, U. S. type of fetlenvl union reproduced in, 459. 

Breailey. Oavid. 174, 1S5, Jo8. 

Birw-ei,' Justice O.Avid J., quoted, 417; opinion In 
Novtheni .Securities cas^e, .4,^0. 

Bridtres, interstate, and interstate commerce, 414. 

Britain. See England and Old-English Common- 
wealth. 

Britain, Central, 58. 

Britain. North, 58. 

Britain. South. 58. 

British <.\M\uiibia in x9.sa, ,^o8. 

British Imimmic. extent of, J97. 398; proposed federa- 
tion of 1,101 1'*, 4S0. 

Broom, ConstHntiofMl Law, quoted, «ot. 

Broom, Jacob. 174. 

Brown, Justice Henr>- B., opinion in Mattox r. U. S., 
240; in Plessy r. Kei-gu.scn. 356, 357; in Btdwell r. 
Downes. ,i."<S. ^i.<o: in UoKien r. Hardy, 413. 

"Brutus. " See Vates. Robert. 

Bryvx. James, fails to jt\x)gniKc originality of new fed- 
eral system. 4 and u., s; Ameriian CommoKwealik, 
3, ,^10, .v^o, .iSi, ,(00-41 V. 453. 

Burgesses, house of. in \ irginia, 06. 

Burke. Edmund, quotevi, 70, 80. toft, 370. 

Burr. Aaron, and the election of 1800, 348. 240; and 
Hamilton. 251; his trial for treason, ajt, a$i. 

Butler, Pierce, 44, 45, 174, 179, iSjn., rgSu., 06. 

Cabinet, members of, should sit In Congress, to Initiate 

legislation. 140. 
Cabinet »\>uucil. vS« Ministers of State. 
Cable companies, and the .\ct of loio. 4*0. 
Cabots. Joan van Sebastian, claim of I^lish Crown 



to Engllsli settlements fn America based on their 
voyages, 80, go; patents Issued to, 90 and n., 91. 

Ciesar, C. Julius, 53 seqq. 

Calhoun, John C, first applied doctrine of nullifica- 
tion to practical politics, 31(1; birth and character, 
316; dissertation of July, 1831, 319; and the doc- 
trine of .secession, 315, 3 Jft; nullification resolutions, 
3^7. 3j8; speech of Ecb, 15, 1833, and Webster's 
reply, 3-»8; last speech in the Senate (1850), 328; 
,j8i, 318, M(\ 3.?8, 391. 

California, and the Compromise of 1850, 287; admis- 
sion of. 287; in 1852, .198. 

Calvin's ca.se, rule in, 358. 

Campbell, John A., as counsel In Slaughter-House 
cashes, 350, 403U.; on the Supreme Court, 259. 

(^aiiada, 1 i3, 4sg. 

t\vnnin);, Ceorgc, Sec. for Foreign Affairs, 38on.; and 
the Holy AUi.ince, 300; negotiations with U. S., 390. 

Caiiet. Hugh, his title, 114 and n. 

t."apcl'an liyivisty, accession of, 114. 

t'aplaingcneial tor the colonics, 120. 

CariblHMu Sea, .ioO. 

Cai-oliiui, a pioiniotary go\'ernment, 99, 

Carpeiitois' Hall. Phila., 127. 

Cavvingtou, Edward, 257. 

Carroll, Daniel, 226. 

Castile, 88. 

(.'astloreagh, Robert Stewart, Viscount, 390. 

(."aswell. Richard. 127. 

Cativn, Justice John. 2S9. 

Census, provided for by Federal ConN^ention, 198; 
tirst. 272. 

Central America, and U. S.. 396; in 1852. 398. 

Central govcinnicnt. system of. 6g seqq. 

Ceulic. King of West S;\xoiis, founder of first kin's! 
line of l<'ugl,i\ul. 58; house of the sole survivor of all 
u>y:il lines, (\l. 

t^han>-eltoi , ptvsiding officer of House of Lords, 84; 
develoinneiU of iudicial power of, 86. 

CharleuiAgac. emiMic of. iij. 

Charles U of V'lvgland. 08. 

Charles \". liuipcioi, 88; 380. 

i^harles III (,the Simiile) of France. 6s. 

Charter of .\pril. 1606, based on English law, 91, 92. 

Charter of lOog, 92. 

Charter of 1620, 03, 97, 98. 

Charter of 1662. 08. 

Charter of 1663, g8. 

Charter of lOoi. 08, 

Charter ixMonies. Massachusetts a type of, 97, 98. 

Charters under which vMlonial go\'t?mments were or- 
ganii^Hi, 94; inx^vocable by the Crown, 94; but 
re\\vable by Parliament, gj. 

Cha.sc, Chief Justice Salmon P., and the "compact" 
theory, 3vi; opinion in Tcv.is r. Wliite, quoted, 
311, ,340; 3M-34». 3S4. 

Chase. Samuel, opposes ratification of Constitution, 
2ti: 130, 131. 132. tftju.. 256. 

Chatham. William l^tt. Uird, 129. 

Clies;\peake Ray, lOO, 167. 

China in 1852, 3g8. 

Chi^>i>ewas and the N. W. Territory, 255. 

Christianity, in Britain. 57. 

Church, the. an>l Cromwrll. 88. 

Circuit courts. See Couits, ciu-uit. 

Cities, representatives of. in Parliament, S3. 

t^tixenship, terms of charter of James 1 concerning, 
.3S0. 

Citiicnshlp of U. S., non-existent until 14th Amend- 
ment, 20S, 461 ; under .\rticles of Confed. and Con- 
stitution, 34S, 340; inquest concernitVR in Dred Scott 
case, 340; Justice Curtis on, 340, ,?so; Justice Miller 
on, 350 seqq.: .status of chilciren of aliens, bom in 
U. S., 357. 3.';8; status of corpot:ations, 35S, 3S9. 

City-Commonwealth, Greek, 109, no. 

City Ta\-em, Phila., 127. 

Ci>nl cases, jur\- trials in, guaranteed by 7th Amend- 
ment. 240 seqq. 

CixHl War. the. precipitated by sUwery que^on, 331. 
342; not a rebellion, 338; les».tus of, 409. 



INDEX 



659 



Cititas, the Teutonic state, S4; formation and elements 
of. 55, s6; " a marching military state," 56; repro- 
duced in Britain, 57 and n.; 60, ii3. 

Claiborne, William C. C, Gov. of Orleans TerTitor>", 
384- 

Clarendon, Edward Hyde, Earl of, and the Sbeldonian 
compact, 84. 

Clarendon. Assize of, grand-jury system remodeled 
by, 71. 

Clarendon, Constitutions of, 70. 

Clark, George Rogers, 256. 

Clay, Henry, and the Missouri Compromise, 281; and 
the Compromise of 1850, 287; his tariff bills of 1832 
and 183J, 319, 330; opposes extension of Constitu- 
tion to territories, 386. 

Clayton-Bulwer Treaty, and the Monroe Doctrine, 
394- 

Clements, Judson C, on railway capitalization in 
U. S., 430, 431- 

Clergy, represented in Parliament of 1295, 83, 84; 
and the Sheldonian compact, 84 and n. 

Cleveland, Grover, and the Monroe Doctrine, 394: 
his Venezuela message, 394, 39s; and the Sherman 
Act, 436, 437. 

Clinton, George, his plan for a union, I30, I3i; his 
factious selfishness, 200; in N. V. struggle, 3i6. 317; 
and the Federal Convention, 303 and n. 

Code Napoleon, 466, 467 and n. 

Coffee House, the, Phila., is8n. 

Coke, Sir Edward, his Institutes, 77, 78, 81, 360, 365, 
366, 367, 381; his interpretation of ch. 39 of the 
Great Charter inapplicable after the revolutions of 
1640 and 1688, 78 seqq.; his merit as an expounder 
of the Charter, 360, 361; and Blackstone, 361; on 
monopolies, 434. 

Collectivism, the present an age of, 301, 405, 407; 
transition from individualism to, 402, 408-411, 448, 
a63, 463. 

Collier. Price, quoted, 397- 

Colonial assemblies, limited powers of, 457. 

Colonial rights, American and English theories of, 
105-107. 

Colonial systems : — 
Of Spain, 379, 380. 
Of England, 380 seqq. 

Of U. S.. foundation of, laid by Ordinance of 
1787, 26s; that system the model on which all ter- 
ritories were afterward organized, 277; 382 seqq., 
384. 385. 

Colonies, English, in America. See English colonies. 

Colonies, relation of, to parent state according to an- 
cient and modem conceptions, 377, 378. 

Colonists in U. S., excluded from participation in Con- 
stitution, 26s; restricted suffrage of, 267. 

Colonization, modem, history of, 379 seqq. 

Color, distinctions based on, 356, 357. 

Comitatus. the, 56. 

Commerce, influence of, in compelling unity of law, 
35 seqq., 467; regulation of, under Art. of Confed., 
137; confusion caused by state regulation of, 166; 
Annapolis Convention, 167; and finance, necessi- 
ties of, largely responsible for Federal Convention, 
i65 seqq.; revolution in, caused by use of steam, 
300, 337; and the War of 1813, 313, 313; wide con- 
tent of term, 416. 

Commerce, an act to regulate. See Interstate Com- 
merce Act. 

Commerce, chamber of, proposed by P. Webster, but 
not adopted, 31; later appeared as Dep"t of Com- 
merce and Labor, 31. 

Commerce, foreign, regulation of, 417; power of states 
to interfere with, by taxation, 417; controlled by 
Congress exclusively, 418; subject to state inspec- 
tion laws, 436. 

Commerce, interstate, line between and intrastate, 
434; natiomil gov't has exclusive power to regulate, 
433, 434- 

Commerce clause of Constitution, vigorously op- 
posed by N. Y. and Va., 307, 308; an overworked 
part of the Constitutioa, 414; evolution of, in Fed- 



eral Convention, 415 seqq.; construed in Gibbons t. 
Ogden, 416; does not prohibit states from making 
proper regulations, 417; Supreme Court divided on 
construction of, 418; and "pure-food" acts, 437. 

Commerce Court, created by Act of 1910, 430; its 
jurisdiction exclusive, 430. 

Commerce and Labor, Department of, 31. 

Commercial system, uniform, and the Ajanapolis Con- 
vention. 468. 

Committee of Detail, members of, 34, 300; plans and 
resolutions submitted to, 34, 199,300. 583-585; and 
the Pinckney plan, 36, 178, 301 seqq.; its report sub- 
mitted by Rutledge, 203, 586-596, £ind discuMed, 
203 seqq.; commerce clause in, 415. 

Committee of Style, members of, 205; its report, 206, 
594-603. 

Committee on Unfinished Portions. 304 and n., 305 
and n. 

Committee of the Whole, Va. and Pinckney plans 
referred to. 176; discussion in. 179; reports 19 reso- 
lutions. 179 seqq.. 187-189; New Jersey plan re- 
ferred to. 191; its report thereon. 194. 

Committees, special, of the Federal Conv.. 204. 

Common carriers, who are held to be. under Act of 
1910. 429. 

Common-law courts, source of. 85. 

Common Pleas, Court of, 85. 

Commons, the. represented in Pari, of 1295. 83. 

Commons, House of. at first allowed to share only in 
taxation, 85; its increased importance under reor- 
ganized Pari., 87: 135. 

Compact. Rousseau's theory of. embodied in Ky. and 
Va. Resloutions. 306. 308. 309; Jefferson's theory of 
the Constitution as a. destroyed by Marshall and 
Chase. 310. 31 1. 

" Compact theory." In work of Hartford Convention, 
314; if well-founded, justified doctrine of seccwion, 
331 ; persistence of, 325; kept alive only as a weapon 
to ddFcnd slavery; how extinguished, 325. 

" Competition," not mentioned in Anti-Trust Act, 450. 

Composite states, distinction between, and confeder- 
ated states, 109. 

Compromise of 1850, 287. 

" Compromises of the Constitution," found in Art. I, 
sect.o, cl. i; Art. i, sect. 3, cl. 3; Art. iv,8ect. 3, cl. 
3. 253. 25s; not to be overturned by President of 
Congress. 345. 

Conciliar system, conflict between, and parliamentary 
system. 90. 

Confederate States of America, a perfect de facto gov- 
ernment. 338. 

Confederated states, distinction between, and com- 
posite states, 109; based on requisition system, 114, 
IIS. 

Confederation, the, doomed by refusal of R. I. to give 
1 Congress power to levy duties, 157; and the public 
I domain, 256; a failure, 458. 

, Confederations in America, various plans of, 1 19 seqq., 
128; Franklin and Coxe's plan of 1754, 121, 123; 
I effect of increased population on idea of, 133. 

Confirmalio cartarum, provisions of, 83, 84, 360. 
! Conflict of laws, .^69 seqq. 

Congress, in P. Webster's plan, and the " Ministers of 
State," 148; bicameral form of, urged by Webster. 
ISO, 151, and adopted, 174. 194; method of election 
of. 151 and n., 184-186; Webster's views as^to iti 
powers. 151, 153. iss; debate on organization and 
powers of. 179. 180; its control over people of terri- 
tories, bow limited, 366, 367; laws of, subject to 
review by Supreme Court, 398, 399; powerless to 
abolish slavery, 345; debates in, not admissible to 
control meaning of words in a statute, 354; may 
govern dependencies as it chooses, 383; has exclu- 
sive control of foreign commerce, 418; its powers 
keep pace with the progress of the country, 419; can 
it grant charters to railroads? 420; growth of legis- 
lative business in, 149, 411. 

Congress of the U. S., various meeting-places of, iS9n. 

First: assembles at New York, counts electoral 

votes, and removes to Phila., 33o; committees of. 



660 



INDEX 



how chosen, 22s; composition of, 226; Madison, 
leader of House in, 227; proposes 12 amendments to 
Constitution, 228; ratifies Ordinance of 1787, and 
divides N. W. Territory, 277- 

Second; committees of, how chosen, 225. 

Third: proposes iich Amendment for ratifica- 
tion, 246. 

Fourth: committees of, appointed by Speaker, 

22'? 226* 

Fifth: passes Alien and Sedition Laws, 304, 305. 
Sixth: passes act fixing seat of government at 
Washington, 220 and n., 221. 

Eighth: proposes 12th Amendment for ratifica- 
tion, 248; provides form of gov't for Louisiana Terr., 
275. 384; tacitly recognizes existence of slavery 
there, 276. 

Fifteenth: directs publication of Journal of Fed- 
eral Convention, 5, 6, 32 and n.; discusses admission 
of Missouri, 180. 

Seventeenth: and the gov't of Florida Terr., 385. 
Twenty-second: and the ordinance of nullification, 
320. 

Twenty-eighth: assents to admission of Texas on 
conditions, 285. 

Thirty-seventh: abolishes slavery in territories, 
343; legislation of, concerning slaves, 343. 
Thirty-eighth: repeals fugitive-slave laws, 343. 
Forty-fourth: and the election of 1876, 249, 250. 
Forty-ninth: creates Interstate Commerce Com- 
mission, 419. 
Conkling, Roscoe, quoted, 355. 

Connecticut, a charter colony, 97, 119, 120; her char- 
ter never altered before the Revolution, 98; sends 
delegates to Stamp Act Congress, 125; statri con- 
stitution of 1776, and ch. 39 of the Great Charter, 
76; delegates to ist Continental Congress, 127; her 
claim to western lands, 134; ratifies Constitution, 
209; opposes Ky. and Va. Resolutions, 311; and the 
War of 1812, 313; and the Hartford Convention, 
313, 314; 137. 157, i8s. 190, 194. I99n., 255, 362. 
Connecticut compromise, 45. 
Connecticut Courant, secession first defined in print in 

(1795). 323. , , ^ , ^ 

"Connecticut plan (Bancrofts) never existed, 9, 

37. 38. 
Connecticut Reserve, 134. i3S, 256, 382. 
Conquest, territory acquired by, 387. 
Conquest and discovery, era of, 89. 
Conseil Federal (Swiss), 148, i49- 
Constitution of the U. S., leading foreign expounders 
of, deal only with aftergrowth, 2-5 ; five features of, 
absolutely novel as attributes of a federal gov't, 

4, 45S, 459; no federal principles of, derived from 
England, 5; Story fails to reveal its origin, 7; sum- 
mary of accounts of its origin given by previous 
writers, 10, 11; the "great discovery" made in 1783, 
and carried to the Convention in the shape of three 
" plans," II, 12; to trace its origin is to fill a vacu- 
um, is; Gladstone on, 18; students of, must begin 
with study of English Constitution, 19; makers of, 
had to study federal unions of Greece, Netherlands, 
Switzerland, and Germany, 20; " passed through a 
process of canonization," 22, 49; little curiosity as 
to author of, 22; inspiration theory of its origin, 22; 
the various "plans" presented to the Convention, 
aa seqq.; all based on P. Webster's Dissertation, 24; 
Influence of commerce in, 25; P. Webster the first to 
defend, 47-49. 603-609; four basic principles of, 
172; as embodied in 23 resolutions referred to Com. 
of Detail, 199; draft of, in report of that commit- 
tee, 203, 586-593; work of Committees of Style and 
on Unfinished Portions, 204-206, 594-602; finally 
adopted, 206, 207; submitted to Continental Con- 
gress and referred to state legislatures, 207 ; opposi- 
tion to commerce clause of, in N. Y. and Va., 207, 
ao8; ratified by Del., 208, Penn., 208, N. J., 208, 
Ga., 208, Conn., 209, Mass., 209, 210, Md., 211, 

5. C., 212, and N. H., 212; ratification by N. H. 
assures adoption of, 212; ratified by Va., 216, N. Y., 
aiS, N. C, ai9, R. L, aig; opposition to, because 



not prefaced by bill of rights, 222, and becatiae of 
lack of guaranty of jury trial in civil cases, 240, 241; 
provision of, concerning treason, 251, 252; is the 
exclusive possession of the organized states, 26s, 
266; question of ratification of, divided men into 
Federalists and Anti-Federalists, 281; responsible 
for judgment in Dred Scott case, 292, 293; wide 
expansion of, 297 seqq.; real difference between, 
and English Constitution, 298; national spirit em- 
bodied in, 299, 300; "compact theory" of, in Ky. 
and Va. Resolutions, 306, 307; Jefferson's funda- 
mental heresy touching that theory, 309; not a com- 
pact, but an instrument of perpetual efficacy, 310, 
321, 322; changes in, recommended by Hartford 
Convention, 314, 315; direct action of, on the citi- 
zen, 32s; itself the real source of difficulty in slav- 
ery question, 330; Marshall's share in interpreting, 
332; his definition of, in McCuUoch v. Md., 336; 
defined by Supreme Court after the Civil War, in 
Texas v. White, 339, 340; logically completed by 14th 
Amendment, 348; proposed extension of, to terri- 
tories, opposed by Webster and Clay, 386; does 
not, propria vigore, extend to all possessions of U. S., 
388; Lecky on, 408; elasticity and growing-power 
of, 408; contract clause of, and corporations, 412, 
413; and the police power, 413; overworked parts 
of, 412, 413; glaring solecism in, removed by 14th 
Amendment, 460-462; full text of, with Amend- 
ments, 610-650; signers of, 636-637. 
Amendments: — 

Subject of, discussed in state conventions, 
225; difficulty of securing, 299. 

I-Xn, proposed by Madison, and recom- 
mended for ratification by Congress, 228; preamble 
to, 229; limitations on the federal gov't, not on the 
states, 229; their adoption, dictated by the jealousy 
of the states, 222. 

I-X, ratified by the states, 228, 637. 

I-VIII, derived from the body of new consti- 
tutional law evolved in England between 1640 and 
1776, 243; effect of 14th Amendment on, 369. 

I, 230-232; one clause of, nullified by Supreme 
Court in 1892, 230 and n., 231. 

n, construed by Supreme Court, 232. 

III, 233. 

IV, 233, 234; construed by Supreme Court, 234. 

V, 23s; construed by Supreme Court, 77, 235- 
237- 

VI, 238; construed by Supreme Court, 238-240. 

VII, 240; purpose of, 241; construed by Su- 
preme Court, 241, 242. 

VIII, 242; copy of art. x of English Bill of 
Rights, 243; not a limitation on power of states, 
243. 

IX, Ston' on purpose of, 244, 24s; an instance 
of over-caution, 244. 

X, 245; construed by Supreme Court, 24s, 246; 
compared with P. Webster's views on same subject, 
155- 

XI, proposed by 3d Congress, and ratified by 
states, 246, 642n., 65 1 ; necessity of, disclosed by 
Chisholm v. Georgia, 246, 247; construed by Su- 
preme Court, 247. 

XII, 247; necessity of, disclosed by election of 
1800, 248; proposed by 8th Congress and ratified 
by states, 248, 643n., 651. 

XIII, and the Dred Scott case, 293; history of, 
343 seqq.; proposed by 38th Congress, and ratified 
by states, 644n., 651; slavery not abolished until 
ratification of, 34s, 346; construed by Supreme 
Court, 346; its effect, 346; certain state laws not in 
conflict with, 426. 

XIV, proposed by 39th Congress, and ratified 
by states, 644n.; construed by Supreme Court, 77, 
78, 23s. 236, 350 seqq., 354 seqq., 369. 370. 461, 462; 
a limitation on powers of the states, 236, 370; cre- 
ates a national citizenship, 298, 461, 462; logically 
completes the Constitution, 348; section i, in- 
tended to remedy defect disclosed by Dred Scott 
case, 350; rule of that case overturned by, 3Si; 



INDEX 



66l 



thnt iiwtlon n nrw Oimt Chnrtcr. .i,s.<. .154:' othrr 
niotivrH ol, .t.si. .t.S.l; l>ioiul vl<-\l' ><( lu.st H<x'(ioii luia 
l>n*vallf>l, .(.s.j; iiiuiliHlicM tlmn-liltliH lulc as to 
rrtirr.sfiitiitioii uiul tuxcH, ,r;i; nvriwoiknl, .\(iH, 
41.1, Ci.(.s 0.(0; iiuil I'ritiiiti rrteiit »tatr Uiwh, .(jO; 
tuul .it.ilf icKiitiitloii «( liiiuoi (lutHc. .1J7. .'\iul .\re 
" Hue iniHcs.'* ol liiw," iti\(l S<-ll''iiu'iliiiliiittloti. 

XV. i>ii>i>o.H«*tl 1)V .|i)tli l\>ii|{tr«.'i ;iiul latltird Iiy 
Stnlf.i, 0.|o: Hole llniittUion on rxiliiMivc toiitiol of 
milVniiic by atutct, ^^^^, loimtrucil by Suinfiiir C'oiiit, 
37.« K<-'J<1. 

Xlll-XV, to be ifKaitli-\l ii.s it itliiuir miiriul- 
ment, .i.j.i. 

.SVif I'ormulttrc of Drt.ill, t'omnillt«*p of Stylf, 
Coniiiiitttf ot\ lliiliiii!<lu->t Pottloim, (.'oiiiiiiiKoo of 
the Wliolf, I'Vilciiil C'oiwpiitiou, itiul The CJieat 
Dlit'ovrry. 

Conotitiitluii, ('oinoioniiMrs of tlip. .SV» Conipmnilm-ii. 

Conntldition, Knulltih. See ICiiuliNli C'oiutltiKloii. 

CuiiMtlttitiuii, Kimt l>V(t(-riil. Ste Aitlrtm of C'uiilVil- 
enuioii. 

Coniititiitioa ti i-oniptu't. .SW C'oininu't tlii*<)ry. 

" Conitltutiuii, tlir. tollowH the lliuj." ilutiaitrilxtsl, 
aftS. .»«|. 

CoiiMtitiltioiml ttiowdi of 1 1. S., jy; .loijci.; llltle ulilnl 
by iiiiifiuliiu-iil.M ot (lif ('oii;i(iliilion, .iiu. 

ConKtiliilloiiiil uuumntci-N. upiilv to .itiUcs uloiir, ,187. 

CoitHtltulioiial liiw, new iititicipic!! of, 10,1, 10.); Miii- 
•hull'!) mIuiic ill (-iriitinii, .<.|J. 

ConKtitiitioiiiil lliiiitaUoun of li-ulNlutivr (Kiwcrii uf 
atutm, nil .'\iiii-ii>'aii iiivriitlon, to.S, 457. 

CoDNtitUtllMI.''., U-ilMIt S)lltllc-in. ,»74. 

CuiiHtltiitioii.M, Ntiilr, iiilliiciii'f ot rrfornu'tl KiiullNh 
C'utiMtitiltioii on, ,\(t\, .K"J, ,170; ir.stiid'iiiciitM of ill. 
3« of tlir Client I'liaitii in, .tfij-.K).|. 

Con«tltiilion.i of C'liiiciiiloii. Srr C'luiiMulon, Con.ili- 
tllliotiH of. 

CoiUitiiMilal I'linurrH.-), I'Vilcrul Convrnllon of 17H7 
cullrti by, f>, i(>j, ifi.s. 1^7, if>H; iiiul tllf Aitli-lrit of 
Confrih-nition, 10, i.u>, i.n. .Si7n.; iiiul 1'. VVfbnlri'ii 
Disserldlion, 40, 41 : 1'oniiiHiril tif l)ut ono lioimr, 141, 
147; iti« iH>wr'ri< iixirl'uiiti-, i.|i; iilMiinlit y of tliirr 
years' liiiiltallou of mrvU-r in, 14J, 1 ,si ; iri-oiniiiriulM 
MUlbllHliinriil of iiulrpcnili'iit Kov'tn (177(1). lo.i; 
iinil IlifctiiiK lit IMiilii., IJ.S tiri|(|.; Iciitllnu iilriubri.i 
of, I JO; no t.ilk of rrvoliition nl oprninu of, 1J7; 
Gitllowiiy'H i>lun of i-oiilnliTiillon ilffVutrd, 1 J7, l jH; 
DcH'liinttion of KluhtM ami Lilwrtir.s, ijH, 4uM .soi; 
" Tlip AtMMHiallon," uH; petition to tlic Kinu, ijo; 
firnt, (liKtolvcd, iJo; lulilrr.t!* to people of (It. Hiit- 
uiii, <'ti., ijo; all eolonie.i lepreMenteil in ."^eeoiiil, 
Jjg: iiiilil Man li, i7«i,\vaH t\\v ilr jurr i\\\i\ lU fiulo 

SOV t, ijy, i.lo; AiliileH of Confeiletallon lepoiteil. 
ctniteil, and adopted, i.to He(|i|.; jtitimlietion ol, in 
dUluite.-* between Ntate.n, i.SJ; and the Uevoliition- 
Rry tiebt, ISO; a|>peiils to .Mtates lor jHiwei to impose 
dutirn, 15(1, 1ST, liieiiibeiHlil|i and ehaiaetei of. In 
February, I7H.J, l.sK; inaiked decadeiueof, i.sH, ISVI 
prealdt>nt8 of, i.s<.); peieKtlnationH of, i.S'j and n.; 

groccedliiKH of l-'ederal I'onveiitioii Niibinilteil to, 
y VVaithiiiKlon, J07; proposed eoiiNtltiition tiann- 
niittrd to .state leiii.Mlatilieii, J07; net ion of ntalrH 
reported to. jjo; apiH>intH lirMl eleellon day. JJo; 
and the Oitiinaiu-e of 17H7, J5.s «r<|(|.; UihI ilayN of, 
a67. iM; its I.I.St ml imiuied Oct.. 17«H, JOB; loriuai 
dlMK>liillon of, jOH. 

Conventicle Act, j.io. 

Convention of 17H7. .SV« Federal Convention. 

Corbin, Mr., of V»., aift. 

Corpinate power, mibjected to nfate control, 41 1. 41 j; 
and the biirtnioiith College ciiKe, 41J; iiiul ChurleH 
River Hr. 11. Wiirrcn Hr., 41J, 41.1. 

Coriioration Tax Ia\w (kjoij), pniviNion of, 4,u; •uii- 
tained by Sui)ren»c Court, 4.tJn. 

CoriHiriitioiiN, nature of, y.j, 94; how iliNmilved, 04; 
■tntuNof, under i4tli Ainendnient, .t.sH; peimniN, but 
not citizriiH, .vsu; liinitutionii of xlate < unlrol ol, .i.su, 
407; iitoiKiHed national charterit of, .\.\\, 4.IJ; piir- 
po«o to niiikc federal control of, univeiHal, 4.W. 

Cotton, production of. In boulh, itlncc the Wat, J47. 



Cotton-gin. <"ff<N't of inveiillon (»f, on Muverv, JS4. 
t'tuincil, the, and the iiioiiau liv, kjS.s to io.|ii, ,S; 88; 

coiiNtitution andl iK)wei ol, to 1040. 00. And u* 

I'onciliai MyMletn. 
Council of the Indle.i. ,SVc Indlert. 
t'ounitel. riulit of acitiHed to apiiear by, j.to, J40. 
Coiintlen, in colonies, imKieualum:! of lowiinhlp.t, 100; 

coinpaiatlve |iioininence and liiiiitionN of. In the 

.Souiliein, New luiuland, and Middle colonica, 101. 
Coiiit leet. In Md., inj, 10,1. 
t'oiiil.s, iM)wei lemineM.s ol. In Tudor tinieit, 87. 
ConitH in l'. .S.. oiiiiiii ol nyHtein of law and eijiilly In, 

70; hl.story i>f, 80. 
CouitM, ciiciilt, of U. S., cieated by Judiciary Act, 

JJ7; and the new (1010) Coiniilcicc Cuurt, 4J0. 

CouitM. dlHtlict, of U. S., Jjfl, Ji-J, 

t'oiiits, liileiloi, lecoiniiiended by P. WebatOf, IS3, 

CoiillH, state. Sff .Stale coilils. 

t'oxe, Daniel, leal autlioi ol plan of union Hiibiniltetl 

by h'lankhn at .Mbaiiv (I7;,.il, uj; i.ts, i.lu. 
t'oxe's and I'lanklin's t<laii. te\t ol, 48.) .|u4. 
I'leeks Uiulians), J84. 
Ciliiiiiial cases, jiiiy lilal In. uuaianleeil by fitll 

AnieiidiiienI, j.|8. 
fioinwell, Ollvel, uses I'.iil .11 .1 (o..!. SS .m.l (lie 

chinch, 8H. 

Clown, the, Ntlllciile lic(\\<rll r.iM.u imil .ui.l (.i;,S 
loOO), 04; ancient iiiiiiiii.il iiii l.idu lion nl, levlveil 
under Ileniy \'II, 87; policy ol, In iMli and ifitli 
cent III leit, 88: claim ol, to I'liglliih sell leiiieiitH In 
Aniellia, yo; its title theielo, peifei led eaily lit r/lh 
crnliiry, ui; and the ilulit to u<i»>l newly (Uncov- 
ered lands, 01. 

Cilisade, Thlid, and the IIinI lax on iieisonal ino- 
lierly, 7J. 

t^lba, J8.|, j88, ,im, ,tgft. 

Clliia Ueuis, fioni Ileniy ll's lime the Hiipieme < oiiit 
of iiintice, 08, 70; development ol, as a iiidi> lal lil- 
biiiial, 711, 7 I ; lepn-senls lieiiiiinina ul Kiim's lleiicli. 
71 ; iiaieiit ol lommoii law roiiits, 8.S, 80; IIm jiullcliu 
woik (liHliiliiiled aniiinii tlii-in anti the chunccllor, 
80. And sfe Kinu In Council, the. 

Cm I Is, J list ix- ll<-iiiiiiiiin K., opinion In Miiriay v. Ilo- 
bokeii Land to.. 81, j.|0, J,17, .104, .|0.s; hlslorlcitl 
eiior itiipaient Iheieln, j.17, ,|0.s; his leasonlnu le- 
jeited by Justlie Matliews, 80, 81, .<0.S; dlsNenlliiK 
opinion In Siolt v. .Sindloid. .(Oi; ^47. 

Cuftis, CeoiKC 1'., Ilisloiy ■>/ //«• Uriuin, luirmnlioH, 
iiHi/ Ailitfitiitit iif the i'oHXiititliiiit, ipioted, 7, H; lite 
lust Amerlcatt tu attempt Much u hiatory, 7; Ita de- 
fects, 8. 

(^ishinu, Thomas, \ itt. 

I'uslomaiy law, Oo; and royal law, union of, Oy; when 
first commltled to wrilinu, S7 and n. 

Customs, have the force of Iftw, when, i^6. 

Cutler, tCphraiin, a68, 

Uitne, Nathan, and the (">r<lliiiince of 1787, J,<(8. 

Uuniel, Justice Peter V'., JS'.>- 

Oarliiioitth Colleue ca.se. Srr D.iitinoiilh Colleue 0. 
VVoodwaiil, In Table of Caaea. 

Dai win, Cluiiles. .SJ. 

Davie, VVIIIiain K., ,\S, 174. ■U7. 108, luo, iiH. 

Dayton, Kllas, jjA. 

Deane, .Silaa, 1 jj. 

Declaiatlon of Independence, and JefTeraon's Koiia- 
aeaiilst ideitd, ,UJ; text of, SU-SIS; alBllers of, .SIS. 
,SlO; I, to, t.li. .|8j. 

Declaiatlon of the Kluhla and Grievances of the (\)lo- 
nisls In Ameilca (I70,s). US, 4<J.S-4oO. 

Declaration of Kluhta itnd LIbcrtIca (1774), iJ8, 408- 
.^oi. 

Drdarattirv Act (17OO), 407. 

Delawaie, set oil fidin IViin., y.t; 11 iitopilrliiry gov't., 
down to Uevoliitlon, uu; aends ileleiiatea to ,Stain|> 
Act Conuress, us; In tlie heileral ( 'iiiiyentlon. I7,t, 
174; lirst state to ratify C<iiiHliliilloii, joS; and the 
N. W. Territory. JSH', tipiioaes Ky.aiid \'a. Kemilll- 
tlons, .»ii; i.t4, IJ7 1O7, lyo, lyijii,, jjo, J71. 

Dclcuiiled puweia, 1*. Webater on, ,|o; Calhoun on, jiB. 



662 



INDEX 



Democracy, American, becomlns conscloiia, at last, of 
its sovereiBn power, 465; recoustructiou of political 
Boclety by, 466. 

Democracy, Enuliah, 466. 

Democratic Convention, at Baltimore (1852), 387; at 
Charleston (i8oo), jgs. 

Democnillc party, name assumed by Jackson wins of 
Republicans, In i8j8, 383; its poltciea and support- 
ers, 383; tlie only great party from 1853 to 1854, 
304. 

Democrats, Anti-Slavery, an element of Free-Soil 
party, 387. 

Departments, division Into, a new idea in a federal 
state, 146, 147; ICnKllsh precedent followed In first 
state constitutions, 146; P. Webster's proposal, 147; 
heads of, removable by President, 237. 

Detail, Committee of. See Committee of Detail. 

Devonshire, 58. 

Dick, Siuuiifl, 357. 

Dlckhisan, John, 10, laS, 130, l8a, 184, 190, 196, 336. 

Diet, the, of (.'■cniuinir Confederation, lis. 

Dlnwlddii-, Rolu'il, tK>veiiioi of N'iiKinla, I3l. 

Direct i)rlin;iiy ay.Mtfin, spicad of, 40s. 

Direct taxation, haw apportioned, iy8, 199. 

Discovery, title by, 01. 

Discovery and conquest, era of, 89, 90. 

District courts. See Courts, district. 

Documentary History of the Constitution, quoted, S. 

Doraaetas (Dorset), $8. 

Dorset, J. V. Sackville, Duke of, quoted, 168, 169. 

Douglas, Stephen A., and squatter soverelfinty, 388; 
opposed by A. Lincoln, 289; the Lincoln-Douulaa 
debatea (1858), 389; his discomfiture, 394, 395; 344. 

Drake, Sir Krancls, 89. 

Dreil Scott case. See Scott, Dred; also Scott v. Sand- 
ford, below, and in Table of Cases. 

Duane, James, 137, 193, 317. 

" Due process of law," in sth and 14th Amendments, 
77, 78. 80, 81, 83, 333, 33S. 336, 337, 359, aeqq., 364, 
305. 366, 367, 370. 

Dunmore, John Murray, E^rl of. Governor of Vir- 
ginia, dissolves House of Burgesses, 136. 

Dutch, the, in New Netherland, 119. 

Dutch West India Co., 354. 

Eadgar the Peaceful, first King of all the English, 59, 
63 and n., 64. 

Eadward the Confessor, 64, 66, 67. 

Eadwlne, Earl of Mercia, 64. 

E^dwlne, King of Northumbria, son. 

Ealdormen, struggle of, with the Crown, 64; 60, 6a. 

East Saxons (Eaaex), 58. 

Ecgbehrt of Wessex, first called himself King of the 
English, S9. 

Economic conditions In U. S. (191 1), 298. 

Economic problems, transition from political to, 463 
seqq. 

Edward I, and Parliament of I39S. 83; his attempt to 
tax the people without its authority, leads to the 
Confirmatio airliiriim, 83; Westminster became seat 
of governn\fnt under, 84. 

Edward II, doi>oscd by Pari, of 1337. 85. 

Edward III, I'ail. divided into two houses under, 84. 

Edward IV, 8s. 87, 8S, 80. 

F'lectlon, theory of. la kingship, 63. 

Electoral coUokcs, ooiuposltion of, 305. 

Electoral t\>miuission Act (1877), 349, 350. 

Electoral Count Art U8S7), 350. 

Electoral system, changed by I3th Amendment, 347 
seqq. 

Electors, choice of President by, 183, 304, 205; are 
state officers, 373. 

Elliot, Alex., Debates of the Convention, 33n. 

Ellsworth, Oliver, on Committee of Detail, 300; 
arbitrator between Northern and Southern mem- 
bers, 301, 3oa; author of Judiciary Act of 1789, 336; 
Chief Justice of U. S., 336; 34, 38. 45. i86, 19S, 196, 
198, 3S0. 

Emancipation, and W. L. Garrison, 381; with com- 
pensation, suggested by Lincoln, 343, 344. 



Emancipation proclamation without legal effect, 344; 
34S; could not abolish slavery In a constitutional 
sense, 345. 

Embargo, the, effects of, in New England, 313. 

Embargoes, Hartford Convention on limitation of, 315. 

Emerson, U. W., The Young American, quoted, 404, 
405. 

Emerson, Dr., owner of Dred Scott, 391. 

Emigration, early, to colonies, Aoa. 

England, reproduced in each colonial commonwealth, 
18; source of ascendancy, [as a colonizing power, 19, 
loo; resemblance of American states to, 19; origin 
of, 51 ; aggregation of sliirea into, 58 seqq.; union of 
the heptarchic states, s8; consolidation of, 59-61; 
Norman conquest, how facilitated, 64, 6s; real na- 
tional unity attained under William I, 66 seqq.; 
laws of, brought to America by colonists, 93; a 
single state divided Into three departments, 146; 
right of accused to call witnesses in, 339; Florida 
ceded to, by Spain, 383, and re-ceded, 384; law as 
to status of slaves In, 391, 393; and France, 304; 
treaty with II. S. (1796), 304; and the War of 1813, 
313; colonial system of, 380, 381 ; charter of James I, 
380; citizenship thereunder, 381; conmierciai supre- 
macy of, and the Holy Alliance, 389; Canning and 
the Monroe Doctrine, 389, 390; protests against 
Russian ukase of Sept. 1821, 393; and the Venezue- 
lan boundary dispute, 394, 39S; her lleet to-day 
practically withdrawn from Caribbean Sea, 396; and 
U. S., importance of firm alliance between, 401. 
And see British Empire and Old-English Common- 
wealth. 

Engleland. See Angeln. 

Engles, their habitat in Sleswlck, S3, S3. And M* 
Low-Dutch tribes. 

English and American constitutional law, oneness of, 
353. 

English Chronicle, S9n. 

English colonies in America, development of, 18; 
resemblance of, to Anglo-Saxon settlements In 
Britain in 5th century, 53, 6t; divers charters 
granted to, 93 seqq.; were mere corporations created 
by the Crown, 93, 94; terra regis, 94; Internal organ- 
ization of, 99 seqq.; new principle of constitutional 
law originated by creation of, 103, 104; majority of, 
adopt written constitutions (1776), 104; American 
theory of rights of, los, 106; the Crown their only 
tie with England, 106; conflict of American and 
English theories of rights of, caused the Revolution, 
106, 107; early plans of confederation among, 119 
seqq.; growth of population and its eilect on feder- 
ative idea, 133; and French Intrigues, 133, 134; re- 
sults of struggle for expansion, 134; resist Stamp 
Act, 124; send delegates to Stamp Act Congress, 
1 35; Georgia ;Uone unrepresented in 1st Continental 
Congress, 125; 380, 381. 

English Constitution, limitations of written history 
of, 1; sources of, only recently explored, i; the 
political substructure of every American state, 18; 
why not " British," 18; a fusion of Teutonic and 
Norman systems, S3, 70; reformed and invigorated 
by revolutions of 1640 and 1688, 78 seqq., 361; the- 
ory of, regarding newly discovered lands, 91; as 
reformed, the source of state bills of rights and of 
the first 8 Amendments to Constitution of U. S., 
343, 344, 361; its growth directed, how, 397; real 
difference between, and Constitution of U. S., 398; 
etTect of conquest under, 381 . 

English Renaissance, the, 89 seqq. 

English settlements in America, title of Crown to, 90, 
91. 

" Era of good feeling " (1816-1834), 383. 

Erie Canal, 419. 

Essex County, Mass., Federalist opinion In, 31a. 

" Essex Junto," importance of, in Federal party, 

313. 

Estate system, establishment of, 73; collapse of, 85. 
Estates, Assembly of. See Parliament. 
Europe, nations of, and title by discovery, 91 ; emigra- 
tion from, 386. 



INDEX 



663 



European aggression, danger of, a serious factor in 
Ainerican politica down to iSaSt 374. . 

Erolution, philosophy of, 409. 

Exchequer, court of, 86. 

Excise tax, Hamilton's, the first real assertion of na- 
tional power, 303; causes the whiskey insurrection, 

303. r 

Executive Department, P. Webster's proposed organ- 
ization of, 148. And see Departments. 

Executive and legislative powers, lack of closer con- 
nection between, the root of all evil, 149. 

Executive power, debate on, in Federal Convention, 
180-183. 

Fact, opinion of court on questions of, 342. 

Farrand, Max, Records of the Federal Convention, S, 14, 
33n. 

Federal Convention of 1787, nature of its work, 4; pro- 
ceedings of, long remained a mystery, s. 6, 32; its 
records sealed and entrusted to Washington, $, 32; 
Its Journal, etc., published by order of Congress in 
1818, 5, 6 and n., 33 and n.; Madison's record of 
proceedings published in 1841, 6; Bancroft's con- 
fused account of, 9; "an assembly of demi-gods," 
II; three "plans " for work of, prepared beforehand, 
ir seqq., 170, 178; the sole question before it, how 
P. Webster's invention should be adapted to exist- 
ing conditions, 12, 178; each "plan" embodied 
every element of " the great discovery," 13; report- 
ers from without excluded, 14; debates partially 
and inaccurately reported, 14; resolutions reported 
to, by Com. of the Whole, 34, 187-189, and dis- 
cussed, 189 seqq.; eminence of members of, 43-46; 
how P. Webster forced calling of, 161, 162; due to 
urgent necessities of finance and commerce, 168 
seqq., 302; working-time of, 171; opening of (May 
23, 1787). 173. 174; delegates present at opening, 
1741 debate on organization of Congress, 184-186; 
really considered only Virginia and Pinckney plans, 
194; debate on basis of representation, 195 seqq.; 
"on the verge of dissolution," 196; committee on 
compromise appointed, 197; its report debated, 198, 
199; debate on report of Com. of Detail, 203 seqq.; 
work of Coms. on Unfinished Portions and of Style, 
204-206; adopts Constitution and reports to Con- 
gress, 206 seqq.; and the " Compromises," 254; pro- 
vision for admission of new states, 271, 272. And 
su Com. of Detail, Com. of Style, Com. on Un- 
finished Portions, Pinckney plan, and Virginia plan. 

Federal courts, admiralty jurisdiction of, 337. 

Federal Farmer, the (R. H. Lee), 216. 

Federal government, novel attributes of, in Constitu- 
tion of U. S., 4, 13, 146; temporary seat of, 220 and 
n., 221; state jealousy of, and the first 12 Amend- 
ments, 222; increasing abnormal demands upon, 
46s. 

Federal judiciary. See Judiciary, federal. 

Federal laws, and state laws, 154, 334, 335; need of 
scientific codification of, 472, 473. 

Federal legislature, bicameral, first suggested by P. 
Webster, 40. 

Federal power, supremacy of, over states, 416. 

Federal union, an artificial and entirely novel crea- 
tion, 18; in Greece, Netherlands, Switzerland, and 
Germany, 20; due to geographical considerations, 
108; defined, 108, 109; the ideal type of, 109; how 
classified, 114. And see Comix)8ite states. 

Federalism, history of, prior to 1787, 108 seqq.; 
Achaian and ^Ctolian leagues, no; Greek, history 
of, a sealed book, in 1787, in; then little esteemed 
by mankind, 117. 

Pediralist, The, origin and authors of, 210 and n.; Mar- I 
shall's opinion of, 211; influence of. in N. Y. struggle i 
over ratification, 216; quoted or referred to, 20 and • 
n.. Ill, 116. ii8n., 233, 241, 244. i 

Federalist party, and the election of 1800, 248, 249; ' 
desired ratification, 281, 282; called " monarchical " | 
by Jefferson. 282; and the quarrel with France, 304, | 
30s; as strict constructionists, 313; successful In 
New England, in election of 1812, 313; opposed to | 



War of 1812, 3r3; in New England, and the right of 
secession, 323, 324; final disappearance of, between 
1815 and 1820, 282. 

Federation, effect of French and Indian War on cauie 
of, 124. 

Ferdinand V (the Catholic), 380. 

Feudal army, the, 71, 72. 

Feudal councils, gradually transformed Into Assembly 
of Estates, 85. 

Feudalism, in German cities, crushed by mercantile 
spirit. 25; under William I, 67; under William Hand 
FTambard, 67; fate of the township under, 101, 102. 

Feudalization, process of, 113 and n., 114. 

Few, William, 174, 226. 

Field, Justice Steplien J., opinion in Virginia v. Rives, 
226; in Santa Clara*. So. Pac. R. R., 355, 356; in 
Bowman v. C. and N. W. R. R., 427, 428; 354. 

Finances of U. S., P. Webster on, 144; and the calling 
of the Federal Convention, 168 seqq. 

Fines, excessive, 242, 243. 

Fiske, John, American Political Ideas, quoted, 102, 
io8n.; Critical Period of American History, quoted. 
270. 271, 382. 

Fitz-Peter. Geoffrey, 74. 

Fitzsimons. Thomas. 157, 174, 226. 

Five Nations, and the Albany Convention, 120; treaty v 
with, 120. 

Flambard, Ranulf, 67. 

Fletcher v. Peck, the first case of annulment of a state 
law by U. S. Supreme Court, 331. 

Florida, province of, 283, 284; territory of, organized. 
284, 38s; admitted to Union, 284. 

Florida, and the Lx>ui8iana Purchase, 274; ordinance of 
secession, 338. 

Florida, East, ceded by Spain to U. S., 284. 

Florida, West, seized by U. S., 284. 

Folk-moot, 57, 60, 63. 

Foraker Act (1900), 388. 

Foreign Affairs, Department of, 227 ; changed to State 
Dept., 227. 

Foreign Affairs, Minister of. See Minister of Foreign 
Affairs. 

Founders of the U. S. See U. S., founders of the. 

France, monarchy in, 114; right of accused to call 
witnesses in, 239; and Texas, 284; and the neutral- 
ity proclamation of 1793. 304; and John Adams, 
304; in Mexico, and the Monroe Doctrine, 394; in- 
trusion of state power in, 403. 

Franklin, Benjamin, and the Articles of Confedera- 
tion, 10, 21; had no thought of gov't with power to 
tax, 21, 13s; Coxe and, their plan of union for de- 
fense, 121, 122, A84-494; Articles of Confederation 
based on his draft, 130; the peace-maker, 185, 196, 
197; appeals for unanimity in Federal Convention, 
206; 44, 45 and n., 132, 133, 139, 147, 165, i69n.. 
179. i8s, 198, 250. 

Free-Soil party, bom of Wilmot Proviso, 287; respon- 
sible for election of Taylor (1848), 287. 

Free-Soil-Democratic convention at Pittsburg (1852), 
287. 

Free states admitted to Union before i860, 290. 

Freedom of speech, 230 and n.; and the Sedition Law, 
305; and the decision in In re Rapier, 230 and n., 231, 
232. 

Freeman, Edward A., letters and divers works of, 
quoted, in., S0», 62n., loin., 102, iion., in, n4n., 
146 n., 148, 149; IS. 

Fremont, John C, his emancipation prodamatioa dis- 
avowed by Pres. Lincoln, 343. 

French and Indian War, 121, 123, 124. 

French colonists, found New Orleans, 123; seek to 
confine English to coast, 123; result of struggle with 
English, 124. 

French Constitution of 1793, 403. 

French Revolution, influence of, on Jefferson, 308. 
403. 404. 4^2; the orgy of individualism. 403; effect 
of, in U. S., 462. 

Friesland, SL S3. 

Fugitive Slave Law, and the Compromise of 1850, 287; 
abolished in 1864, 343. 



664 



INDEX 



Fulk of Anjou, 68. 

Fuller, Melville W., 23111. 

Fuller, The Purchase of Florida, quoted, 38411. 

Fulton, Robert, 416. 

Gadsden, Christopher, 126. 

Gage, Thomas, So. 

Galloway, Joseph, his plan of confederation, submit- 
ted to Congress, and defeated, 127, 128 and n. 

Galvez y Gallardo, Bernardo, 283. 

Gardoqui, Spanish premier, 208. 

Garrison, William Lloyd, demands unconditional 
emancipation, 281; and the Dred Scott case, 292, 
293 and n.; an advocate of secession in 184s, 326. 

Gau. See Hundred. 

Gemot, 57- 

General warrants, prohibited by 4th Amendment, 233, 
234. 

Genet, Edmond Charles (" Citizen "), and the neu- 
trality proclamation of 1793, 304; recalled, 304. 

Geography, a factor in determining union of colonies, 
108. 

George III, 129. 

George, James Z., and the new constitution of Miss., 374. 

Georgia, the only colony not represented in ist Con- 
tinental Congress, 125; ratifies Constitution, 208; 
and slavery, 254; claim of, to Mississippi Terr., 277, 
278; state convention of 1850, 326; ordinance of 
secession, 338: 137, 199 and n., 273. 

German Code of 1900, the, 467. 

Germsinic Confederation, the, 20, iij. 

Germany, 397. 

. Gerry, Elbridge, 44, 181, 182, i86n., 198, 199, 206, 
223, 226, 250. 

Gilman, John T., 226. 

Gladstone, W. E., 18, 42. 

Godwine, Earl, 64. 

Goebel, Julius, commentary on Faust, quoted, 360. 

Gordy, Political Parties in the U. 5., quoted, 28in. 

Gorges, Sir Ferdinando, heirs of, sell present State of 
Maine to Mass., 278. 

Gorham, Nathaniel, Pres. of Congress, 159; 34, 187- 
189, 196, 199, 200, 201, 202, 206. 

Goschen, George J., Viscount, quoted, 465. 

" Governors, House of," 471, 472. 

Graham, Geo. VV., quoted, 509. 

Graham, William A., quoted, 508, 509. 

Grand jury, and the sth Amendment, 23s; 71. 

Gray, Horace, opinion in Lowe v. Kansas, quoted, 8r, 
366; in U. S. V. Wong Kim Ark, 358. 

Grayson, William, 213, 257, 258, 271. 

Great Britain. See England. 

Great Charter, the, forced from King John by the 
barons, 74, 75; confirmed by the Confirmatio car- 
tarum, 83; varying interpretations of, 222, 223; the 
cornerstone of American constitutional law, 223; 
243. 243. 

Chap. 30, the immortal part, 75; construction of, 
in later years, 76; as it appears in various state con- 
stitutions, 76 seqq., 362, 363; and the sth and 14th 
Amendments, 77. 78, 81, 237, 297. 359 seqq., 366; 
Blackstone's commentary, not Coke's, the true key 
to meaning of, 365. 

Great Council. See Magnum Concilium. 

" Great invention, the." See Webster, Pelatiah 

Greece, ancient, federalism in, 20 and n., no; rela- 
tions of, with her colonies, 377. 

Greek city-commonwealth, the, 109, no. 

Green, J. R., History of the English People, quoted, 
S3n., S6n., 63n., 66n., 73, 74, i07n., 300n., 402. 

Grenville, George, 107, 381, 382, 383. 

Grenville Ministry', the, 125. 

Grier, Justice Robert C, opinion in Prize Cases, 
quoted, 338, 339. 342 : 259. 

Grifhn, Cyrus, Pres. of Congress, 159; presides with 
Marshall at trial of Burr, 251. 

Grotius, Hugo, quoted, 116. 

Guadalupe-Hidalgo, Treaty of, 386. 

Guerrero, Vicente, 286. 

Guthrie, The Fourteenth Amendment, 353. 



Habeas Corpus Act (1679). 223. 297. 

Hallam, Henry, Constitutional History, quoted, i, 
223, 461. 

Hamilton, Alexander, history and character of, 191; 
192; his special aptitude for economics and finance, 
192 ; among the first to conceive the idea of a fed- 
eral convention, 162, 165, 192; his plan elaborately 
worked out beforehand, 11 seqq., 22, 23 and n., 24: 
his plan submitted to the convention, is, 193; full 
text of his plan, 570-579; which was more volum- 
inous but less practical thein Pinckney's, 193; his 
great speech imperfectly reported, 15, 193; his plan 
unsupported, 193, and not referred to Com. of De- 
tail, 200; his plan published in 1801, 33; author of 
address of Annapolis Convention, 26; and P. Web- 
ster's Dissertation, 40, 41; and P. Webster, Prof. 
Sumner on, 161; his motion concerning suflFrage, 
179, 180; takes little part in later proceedings of 
convention, 200; his triumph in N. Y. struggle over 
ratification, 218; and the election of 1800, 251; shot 
by Burr, 251; leader of Federalists, 282; his excise 
tax on spirits the first real assertion of national 
I)ower, 303; quoted on various subjects, in, 137, 
138, 157. 158, 194. 241, 244; menrioned, 14, 20, 28, 
36, 42, 44, ii6n., n8n., 139, 169. 170, 171, 172, 174, 
17s, 177. 205. 250, 302, 312. 

Hamilton, Charles, 160. 

Hamilton, John C, Life of Alexander Hamilton, quoted, 
15, 23, 193. 

Hampshire, 58. 

Hancock, John, Pres. of Congress, 159; favors rati- 
ficadon, 210; 225, 283, 312. 

Hanover, Lower, 53. 

Hanover, Treaty of, 117. 

Hanson, John, Pres. of Congress, 159. 

Harlan, Justice John M., dissenting opinion in Twining 
V. New Jersey, quoted, 369; in U. S. v. Knight, 448, 
449. 

Hjirmon, Judson, Attorney-General, 437. 

Harold, chosen king to succeed Eadward, 64; de- 
feated at Hastings, 66. 

Harrison, Benjamin, opposes ratification, 213; 126. 

Harrison, President Benjamin, 436. 

Harrison, President W H., 277. 

Hartford Convention C1814), and the War of 1812, 
312; originated by Mass., 313; membership of, 313, 
314; its work a reflection of Va. and Ky. Resolu- 
tions, 314, 31s; its designs defeated by Jackson's 
victory, at New Orleans, 315; and the right of 
secession, 324. 

Hastings, battle of, 66. 

Hawaii in 1852, 398. 

Hayes, President R. B., and the election of 1876, 249, 
250. 

Hayne, Robert Y., Calhoun's spokesman, 315; bis 
debate with D. Webster, 316-318; his defense of 
nullification based on Va. Resolutions, 317; 319. 

Henderson, Alexander, i65n. 

Henr>' 1, his election, 67; his coronation oath a char- 
ter of liberties, 67 and n.; his administrative reform, 
68; laws of, the basis of the Great Charter, 74. 

Henry H, heir of Stephen, 68; fusion between Nor- 
man and Teutonic systems began in his reign, 70; 
levies scutage, 72; first taxes personal property, 72; 
71. 232. 

Henry HL 83. 

Henry IV, 85. 

Henry VII, the true successor of Eklward IV in a con- 
stitutional sense, 87; 88, 89. 

Henry, John, 324. 

Henr>-, Patrick, opposes Federal Convention, 178; 
on Rutledge, 200; tries to organize Southern con- 
federacy, 211; opposes ratification, 213,214, ais; 
126, 128, 302. 

Heptarchic states, division of, 58, so, 63. 

Herbert, Hilary A., Reconstruction by Eye-Witnesses, 
342n. 

Hereditary principle in kingship, how modified, 6a. 

Heretoga (war -leader), 62. 

Hewes, Joseph, 127. 



INDEX 



665 



High Commission, the, 78, 237. 360, 361. 

Highways, interstate, control of, 419, 420. 

Hobart, Mt., 217. 

Hobbes, Thomas, 311, 321, 325. 

" Holding Companies," formation of, due to decision 
in U. S. V. Trans-Missouri Freight Assoc., 438; the 
U. S. Steel Corp., 438; surrender of McKinley ad- 
min, to, 438; the No. Securities Co., 439 seqq. 

Holland, 304- 

Holland, Sir Henry, Jurisprudence, quoted, 309, 

Holmes, Justice Oliver W., dissenting opinion in No. 
Securities Co., 440, 44i- 

Holy Alliance, the, 390, 391. 392. 

Hooper, William, 127. 

Hopkins, Stephen, 127, i33. 

House of Commons. See Commons, House of. 

House of Lords. See Lords, House of. 

House of Representatives. See Representatives, 
House of. 

Houston, William C, 174. 

Howe, W. W., Studies »n the Civil Law, 469. 

Howell, E>avid, 256. 

Hoyt, William H., 502, 509- 

Hudson River, and the case of Gibbons r. Ogden, 416. 

Hume, David, History of England, quoted, 434. 

Hundred, the, an aggregation of townships, 51, 55, 
99; soon disappeared in America, 61 and n., 100 
and n.; union of, became shire, 99, 100; 54, 56, 60. 

Hundred court, 55, 57, 60, 61, 82, 84. 

Hungerford, Sir Thomas, first Speaker of the Com- 
mons (1377). 84. 

Hunt, Gaillard, Life of Calhoun, quoted, 327; Life of 
Madison, 561. 

Himter, David, his essay at emancipation disavowed 
by Pres. Lincoln, 343. 

Hunter, Sir William, quoted, 396. 

Hutchinson, Thomas, quoted, 96; 126. 

Illinois, admission of, 278; disguised slavery in, 278; 

134, 256, 291, 382. 
Illinois Territory, organi2«d, 277. 
Impeachment, power of, acquired by Parliament, 85. 
ImpUed powers, Marshall on, in McCulloch v, Md., 

24s. 
Inconveniences, increase of, 469. 
Independence Hall, 129, is8n. 
India, 398. 

India House (Seville), 379, 380. 
Indiana, admission of, 277; disguised slavery In, 278; 

134. 256, 382. 
Indiana Territory, organized, 277; attempt to legalize 

slavery in, 277. 
Indian tribes, and title by discovery, 91; commerce 

with, 41S. See Five Nations, Six Nations, and 

French and Indian War. 
Indies, Council of the, 380. 
IndividuEd, dependence of the, on the state, 405 seqq.; 

illustrations, 406, 407. 
Individual rights, the nairrowing circle of, 301, 40S, 

44S, 462; reestablishment of, the ultimate end to 

be attained, 465, 466. 
IndividuaUsm, transition from, to collecti^^sm, 402, 

408-411, 448, 462; orgi' of, in France, 403; the sub- 
structure of American national character, 404. 
Industrial revolution, outcome of, 463. 
Industriahsm, and the waning of indi\'idualism, 409. 
Innes, Harry, 216. 
" Inspiration theory " of the origin of the Constitution, 

absurdity of, 3, 174; 6, 13, 16, 22, 24. 
Inter-citizenship, in Articles of Confederation, 135, 

136; reproduced in Constitution, 136. 
Intercommunication, a potent ally of the national 

spirit, 299, 300; effect of increase in facility of, 300, 

469. 
International law, questions of, bom of the Civil War, 

339; and the Monroe Doctrine, 395. 
Interstate commerce, corporations engaged in, 359; 

distinguished from intrastate, 424; regulation of, 

and poUce pvower of states, 425, 426; does Federal 

control extend to all agencies of? 431, 432. 



Interstate Commerce Act (1887), 420; construed by 
Supreme Court, 421 seqq.; summary of amend- 
ments Eind suppilementary acts prior to 1910, 429. 
Amending Act of June iqio, intrastate commerce 
expressly excluded in, 428, 429; new subject mat- 
ters in, 429; various pubhc-ser^nce companies in- 
cluded in, 429; Commerce Court created by, 430, 
and commission to investigate railroad securities, 
430. 

Interstate Commerce Commission, created by Act of 
1887, 419; a body corporate, 421; its jurisdiction 
defined by Supreme Court, 421 ; its power over rail- 
road rates before 1910, 422, 423; has judicial, not 
legislative power, 423; its orders enforceable by 
Commerce Court, 430. 

Intrastate commerce, distinguished from interstate, 
424; not subject to commerce clause of the Consti- 
tution, 424; state may regulate, but not destroy, 
424; by Act of 1910, expressly excluded from that 
and Act of 1887, 428, 429. 

Iowa, history of, 286; admission of, 286 ; 289. 

Iredell, James, 218. 

"Irrepressible conflict, the," and the Ordinance of 
1787, 271; 330. 

Jackson, President Andrew, emd anti-slavery matter in 
the mails, 231 ; and the spUt in the RepubUcan party 
(1828), 283; his victory at New Orleans, and the 
Hartford Convention, 315; and the nulUfication 
doctrine, 316 seqq.; abandons protection, 316; and 
the passage of a nullification ordinance by S. C, 
319, 320; his proclamation, 320; and John Msirshall, 
335 ; 284. 

Jackson, James, 228, 229. 

James I, charter of April, 1606, granting lands in 
America, 91; based on English law, 92; 90, 380. 

Jameson, Prof., Studies in the History of the Federal 
Government, 9, 34, 35, 177, 202. 

Jamestown, settled by the London Company (May, 
1607), the first permanent settlement by EngUsh- 
men in the new world, 92; first representative 
assembly at, 96; first slaves in America at, 254. 

Japan, 397. 398, 400. 

Jay, Chief Justice John, President of Congress, 159; 
negotiations for treaty with Spain, 208; in New 
York struggle over ratification, 217; and the election 
of 1800, 248; why he left the Supreme Court, 309, 
332; 127, 129, i3on. 

Jefferson, President Thomas, Madison's letter to (Mar. 
19, 1787), 175, 552; andtheelectionof 1800, 248,249; 
reports ordinance for temporary gov't of public 
domain, 256, 257; his plan for extinction of slaverj', 
270, 271; and the Louisiana Purchase, 274 seqq.; 
his difficulty as to its constitutionality, 274; leader 
of RepubUcans, 282; letter of, to Washington, 282; 
and the paternity of the Ky. and \'a. Resolutions, 
306; the real author of both, he spoke through differ- 
ent mouthpieces, 308; influence of Rousseau and 
the French Revolution on, 308, 403, 404, 462; his 
fundamental heresy in both sets of resolutions, 309; 
fails to appreciate importance of judicial power, 309; 
attacks Federal judiciarj', 309; and the "compact 
theory," 311; dedines moral responsibility for the 
Ky. and Va. Resolutions, 311; and the Hartford 
Convention, 314; and the Declaration of Independ- 
ence, 322; on the right of secession, 323; letter of, to 
Taylor of Caroline, 323; and John Marshall, 333. 
334; and the Ordinance of 1787, 382, 383; hostile 
to self-government of colonies, 383; and the Ameri- 
can system of isolation, 390, 391; letter of, to Mon- 
roe (the Monroe Doctrine), 390, 39i; advocates 
friendly relations with England, 392; the creed of 
his party, 404; the apostie of state sovereignty and 
decentralization, 462; quoted, 11, 147. 279, 280, 
325; mentioned, 22 and n., 39, 43n., 80, 131, i69n., 
250, 251, 258, 269, 303, 317. 328, 331. 336, 396. 

Jennifer, Daniel of St. Thomas, i65n., 211. 

John (King), character, 73. 74; the barons conspire 
and rise against, 74, 75; grants the Great Charter, 
75; and the council at Oxford, 82. 



666 



INDEX 



Johnson, Samuel, 218. 

Johnson, Thomas, an. 

Johnson, WiUiam S., 196, 205. 2a6. 

Johnson, Zachariah, opposes ratification, 213; 215. 

Johnston, Alexander, AnterUan Polit. Hist., quoted, 
27, 376, 279, 30S, 403, 404; Genesis of a New Eng- 
land State, 97n. 

Tones, Willie, 318. 

judd, William, 29. 

Judge-made law, 371. 

Judges, federal, tenure of, 183, 184. 

Judicial Department. ^<<- Departments. 
Judicial inclusion and excJusion," 450, 452. 

Judicial power, Jefferson's fiulure to appreciate Im- 
portance of. 300; supremacy of. established by Su- 
preme Court under Marshall, 310; 332 seqq. 

Judiciary, federal, fust suggested by P. Webster, 40, 
153; not provided in Articles of Confederation, 152; 
debate in Convention on, 182-184; clauses of Con- 
stitution referring to. attacked by P. Henry and 
upheld by Marshall, 214; attacked by Jefferson, 
309. 310. 

Judiciary Act of 1789, 226, 227. 

Juries, states may change common law concerning, 368. 

Juries, trial, history of. "i- 

Jurisprudence, historical school of, and the " compact 
theory," 3JI. 3J2. 

Jury, grand, ^r*- Grand jur>-. 

Jury, trial by. gradually supersedes all other modes, 71. 
ury system, germs of, in popular assemblies of hun- 
dred and shire. 60. 
Jur>' trial, in criminal cases and the 6th Amendment, 
23S seqq.; in civil cases, and the 7th Amendment, 
240 seqq. 
Justiciar, office of, 68. 
Justinian, InstiiiUes, 347n. 
Jutes, S2, S3- See Low-Dutch tribes. 
Jutland, S3. 

Kansas, admission of, 205; 288. 

Kansas-Nebraska Bill (i8s4'>, 288 seqq.; passed by 
Nortliem and Southern Democrats and Southern 
Wliigs, 294; opposition to, led to birtli of Repub- 
lican party, 294. 

Kean, John, 257. 

Kemble, John M., Codex Diplomaticus, etc., in., is, 
59n.; Saxons in Ensland, in., 62n. 

Kent (county'). 58. 

Kent, James. Chancellor of N. Y., 416. 

Kentucky, admission of, 273; slaves in, 273; compact 
with Va., 273- 

Kentucky Resolutions (1798-90), formulated by Jef- 
ferson, 306; substance of, 306. 307: supremacy of 
states, and right of nullification. 306. 307; how cir- 
culated. 311; tlie only replies antagonistic. 311; and 
tlie Hartford Convention, 314; biUef\il intiuence of, 
down to 1861, 322; 30S. 309. 317. 32S. 336. 

King, power to depose, acquired by Pari.. 85; in the 
primitive state, succeeded by ealdorman. 60. 

King in Council, power of, reiluced under Plantagenets 
and Lancastrians. 85, 86; judicial work taken from, 
86; powers retained by, 86, 87; power of, revived 
under Edward IV, finally became an engine of 
tyranny. 87. 

King, Rufus, revives Jefferson's ordinance for tem- 
porar>' gov't of N. W. Territor>', 257, 258; Federalist 
candidate for President (1S16), 282; 32n., 44, 167, 
17^, 194. 196. 190. 20s, 210, 226, 250. 

King s Bench, Court of, had its source in the Curia 
Regis. 71; 8s. 

Kingship, origin of, in Britain, 62; Woden's blood an 
indispensable condition of, 62 and n. ; hereditary 
principle in, 62; theory of election, 62; develop- 
ment under William I, 66, 67; under William H, 67; 
under Henry L 68. 

Kinsey, James, 127. 

Knights of the shire, 82, 83, 84. 87. 

"Know-ye" measures In Rhode Island, 167, 168. 

Knox, Philander S., Attorney-General, and the Anti- 
Trust Act, 439 seqq. 



Labor, organized, and the state, 407. 

Lacombe, E. Henry, opinion in U. S. v. American 
Tobacco Co., in Circuit Court, 443. 

Lamb, Charles, 463. 

Lancaster, House of, 83. 

Lancaster, Pa., Congress at, iS9n. 

Langdon, John, first Pres. of U. S. Senate, 309, 330, 
326, 250. 

Langlois, Charles V., Introduction aux Etudes his- 
toriques, 16 and n., 50. 

Langton, Stephen, 74. 

Lansing. John. 1S9. 196, 200, 216, 217. 

Laurens, Henry, Pres. of Congress, 15911. 

Laussat, M., 276. 

Law, part and parcel of the national life, 297, 300. 

"Law of the land " in the Great Charter, 333. And see 
" Due process of law." 

Lawrence, T. J., Principles of International Law, 39Sn. 

Laws, lack of uniformity between state and federal, 
and between those of dift'erent states, 469; efforts 
to establish uniformity, 470. 

Leach. Dryden. 234. 

Lecky, William E. H., on the American Constitution. 
40S; his Democracy and Liberty, nxioted and criti- 
cized, 408. 

Lee, Artlmr, 165. 

Lee, Henry, 216. 

Lee, Richard Henry, Pres. of Congress, ison.; letter of, 
to Madison, 162; opposed to Federal Convention, 
17S; tries to organize Southern confederacy, 211; 
opposes ratification. 213; in N. Y. struggle over 
ratification. 216; proposes bill of rights, 224 and n.; 
126, 129, 257, 258, 302. 

Legal procedure, need of simplification of, 473. 

Legislation, increase in volume of, 411. 

Legislative department. 5c<- Departments. 

Legislative power, of Congress, debate on, 180. And 
see Executive and legislative powers. 

Legislative power of states, theory of constitutional 
limitations of, los. 

Levying war, defined by Marshall, 253. 

" Lewes, Mise of," 83. 

Liberator, the, 281. 

Lieber, Francis, Civil Liberty and Self-Govemment, 
86n.. 363. 364. 

Lincoln, President Abraliam, opposes Douglas's theory 
of slavery as a local institution, 289; leader of Re- 
publican party, 204; liis triumph over Douglas, 294, 
295; disavows Fr6mont's and Hunter's emancipa- 
tion measures, 343; hints at emancipation with com- 
pensation, 343, 344; quoted, 330; 270. 

Lincoln-Douglas debates. 289, 294. 

Liquor traffic, not covered by 14th Amendment, 427; 
the line drawn by Justice Field, 427, 428; origmal 
packages. 42 S. 

Liquors, interstate transportation of, 423, 424. 

Livingston, Philip, 127. 

Livingston, Robert R., in N. Y. struggle over ratifica- 
tion, 217. 

Livingston, William. 127. 

Local self-government, origin of Old-English system 
of, 51-61; Teutonic system of, and Norman central 
gov't fused under Angevin kings, 69 seqq.; love of, 
in original states. 299; 300. 301. 

Locke. John, Fundamental Constitutions, 99, 120. 

Locomotives. 300. 

Lodgv. Henry Cabot, 23n. 

London Company, ro>'al grant to, 91 ; settlement of, 
at Jamestown. 92; second grant to, 93 and n.; its 
charter revoked. 94; and N'irginia, 95. 

London Times, quoted. 39Sn. 

Long Parliament, the, 80, 90. 223, 297. 

Lords. House of. proposed reform of (1911). 298. 

Louisiana, admission of, 276, 323; and the Florida 
boundary, 2S4; and a protective tariff, 316; ordi- 
nance of secession, 33S; and the Emancipation 
Proclamation. 344, 345. 

Louisiana, district of, attached to Territory of Indiana, 
27s; organized as Missouri Territory, 275, 376. 

Louisiana, province of, purchased from France, 374; 



INDEX 



667 



bills for temporary gov't and for dl^ris^on of, 27s; 
slavery already established in, by custom, 276. 

Louisiana, Upper, 289. 

Louisiana Purchase, a brilliant act of diplomacy, 274, 
384 seqq. And see Louisiana, province of, and 
Treaty of April 30, 1903. 

Low-Dutch tribes, in England, 52, S7; created "a 
Germany outside of Germany," S3; their primitive 
political institutions the starting-point of American 
constitutional history, 53; western coast of Britain 
not conquered by, 57 ; in conquered portion, planted 
the entire fabric of Teutonic life, 57. 

Lowndes, Rawlins, opposes ratification, 211, 212. 

Mably, Abb6, Ohsenaiions, etc., 20n., iir, ir6, 117. 

Macaulay, Thomas B., Lord, History of England, 1. 

McClurg, James, 174. 

McHenry, James, 36. 

McKinley, President William, and the " holding com- 
pany," 438, 439. 

Mackintosh, Sir James, quoted, 296, 297, 341. 

Maclaine, Archibald, 218. 

McMaster, John B., Benjamin Franklin, quoted, 122; 
382, 383. 

Madison, President James, and the proceedings of the 
Federal Convention, s; his record thereof, published 
in 1841 {see Madison Papers), 6; and the "Virginia 
plan," II seqq., 22 andn., 23 and n., 24, 174, 175; his 
letters to Jefferson, Randolph and Washington, 17s, 
177, 552-557; on the credit due P. Webster's initi- 
ative, 14; and Webster's pamphlet, 26, 27, 40; and 
the Pinckney " plan," 33; his preface to the Debates, 
quoted, 37, 39; the first " sketch on paper" of the 
Constitution, 39; and the Albany meeting of 1754, 
121; on P. Webster smd Hamilton, 161, 162; and the 
calling of the Federal Convention, 162; proposes 
"politico-commercial commission," 167; his mo- 
tion concerning suffrage, etc., 180; and the judi- 
ciary, 183, 184; on the organization of Congress, 
184; on basis of representation, 196; and the action 
of Mass. on the Constitution, 209, 225; and rati- 
fication by Virginia, 213, 214, 215, 216; letter of 
Hamilton to, 217, and his reply, 218; leader of 
House in ist Congress, 227; offers 12 Amendments 
to remove apprehensions as to security of popular 
rights, 228; nature of the amendments, 228; on the 
Ordinance of 1787, 269; on the admission of Vt., 
273; ostensible author of Va. Resolutions, 307, 308; 
as earnest a Federalist as Washington in the early 
days, 308 and n.; and the negotiations with Can- 
ning (1823), 391; on the commerce clause, 416; 
quoted, i4Sn., 146; mentioned, 14, 15, 20, 28, 36, 
42, 43, III, ii6n., n8n., 131, 151. IS7, 160, 169, 
170, 171, 172, 174, 181, 190, 205, 226, 250, 257, 268, 
302, 303, 468. 

Madison Papers, publication of the, 6, 37; "an invalu- 
able storehouse," 37-' 

Magistrates, in the Teutonic state, 55. 

Magna Carta. See Great Charter. 

Magnum Concilium, the, under Henry I, 68; under 
Henry IL a perfect feudal court, 70; 69. 

Mahan, A. T., Sea Power in its Relation to the War of 
1812, 379- 

Mails, and decision in U. S. v. Rapier, 230-232. 

Maine, Sir Henry, Popular Government, 96; Village 
Communities, 113; Ancient Law, ii4n. 

Maine, history of, 278, 279; included in new charter of 
Mass., 278, 279; admission of {1820), 279. 

Manchuria, railways in, 400. 

Manorial system of townships under feudalism, loi, 
102; retained in Md. and N. V., 102, 103. 

Mansfield, William Murray, Lord, and Sommersett's 
case, 234, 253, 291, 344. 

Marbury ». Madison (1803), the first case of annul- 
ment of a national law by Supreme Court, 331. 

Mark, the (became English township), 54, 55, loi. 

Mark-moot, the, origin of town-meeting, 54, SS- 

Marshcdl, John, Chief Justice, and the supremacy of 



the Supreme Court, IS3. IS4. 3io; on the Federalist. 
211; extols federal judicial system, 214; first sat as 
chief at first session of Supreme Court in Washing- 
ton, 221, 331; presides at trial of Burr, 251, 252; the 
dominating mentality in the struggle of the na- 
tional spirit in the courts, 331; scope of his work, 
331, 335; the mouthpiece of the Court, 332; the most 
notable products of his judicial career, 335; his 
work anticipated and defined by P. Webster, 335; 
his rule of construction, 354; opinion in Barron v. 
Baltimore, 237; in McCuUoch v. Maryland, 24s, 
246, 311; in American Ins. Co. v. Canter, 266; in 
Cohens v. Virginia, 329, 414, 415; in American Ins. 
Co. V. Bales of Cotton, 385; in Deirtmouth College 
V. Woodward, 412; 80, 155, 250, 340. 

Martial law, 344, 345. 

Martin, Alexander, 174, 226. 

Martin, Luther, 36, 45, 190, 194, 196, 198. 

Maryland, colony, and the Annapolis Convention, 25, 
26; the hundred retained in, 61 ; the first proprietary 
gov't to bear fruit, 98, 99; manorial system retained 
in, 102, 103; sends delegates to Stamp Act Congress, 
125, and to ist Continental Congress, 127; 120. 

Maryland, constitution of 1776, and ch. 39 of Great 
Chcirter, 76, 362 ; and the Articles of Confederation, 
130; effect of her refusal to ratify them, 133, 134, 
255; her demand for national dominion over North- 
west Territory triumphs, 134, 135; ratifies Consti- 
tution, 211; 137, 166, 167, i73n., 185, i99n., 229, 
271, 302. 

Mciryland and Virginia, joint commissioners of, and 
their recommendations, 165, 166. 

Mason, George, opposed to Constitution, 178; on 
organization of Congress, 184; and the method of 
electing President, 204, 205; opposes commerce 
clause, 207, 208 and n.; opposes ratification, 213; 
36, 43, 147, i65n., 174, 198, 206, 215, 250, 271, 302, 
346, 347. 362, 561. 

Massachusetts (state), constitution of 1780, and ch. 
39 of Great Charter, 77; and the Federal Conven- 
tion, 167, i73n.; struggle over ratification, 209, 210; 
importance of her action, 209, which is commended 
by Madison, 225; ratifying convention in, and pro- 
posed amendments, 225; and the N. W. Territory, 
255; and Maine, 278, 279; opposed to Ky. and Va. 
Resolutions, 311; the storm-centre of opposition to 
War of 1812, 313; and the Hartford Convention, 
313. 314; secession spirit in, 323. 324; 199, 272, 363. 

Massachusetts Bay, Governor and Company of 
(1629), 93; charter of, canceled (1684), 94; nature 
of its charter, 97; a typical charter colony, 97, 98; 
independence of, curtailed under new charter (1691), 
98; proposes Congress at N. Y. (1765), 124, 125; 
and the ist Continental Congress, 125, 126; asks 
for general congress of committees, 126; charter 
suspended (i774), 126; claim of, to western lands, 
134; 119, 120, 121, 137. 

Mathews, Justice Stanley, opinion in Hurtado v. Cali- 
fornia, 80, 81, 365, 366. 

Matilda, daughter of Henry I, 68. 

May, Samuel J., Some Recollections of our Anti-Slavery 
Conflict, 326. 

Mecklenburg Declaration of Independence, 502-509. 

Mecklenburg Resolves, 502-509. 

Meigs, The Growth of the Constitution, 35, 201, 202. 

Merchant, a, the father of the Constitution, 468. 

Mercia, kingdom of, 58; conquests of, 59. 

Mexican War, the, sequel of annexation of Texas, 286; 
a victory for slavery, 286. 

Mexico, revolt of, 28s; Texas declares her independ- 
ence of, 28s; and slavery, 286, 287; French inter- 
vention in, and the Monroe Doctrine, 394; in 1852, 
398; U. S. type of federal union reproduced in, 459; 
constitution of, 459, 460. 

Mexico, Gulf of, 391, 396. 

Michigan, Territory of, 286. 

Michigan, admission of, 283; 134, 256, 38a. 

Middle Ssucons (Middlesex), 58. 



' This publication is quoted very frequently In many parts of this volume. 



668 



INDEX 



Mifflin, Thomas, Pres. of Congress, iso; 127. 

Military organization in the Teutonic state, 56. 

Militia, 232, 233- 

Millard, Thomas F., The New Far East, 400, 401. 

Miller, justice Samuel F., opinion in Davidson v. New 
Orleans, quoted and criticized, 78, 81, 237, 36s; in 
Slaughter-House cases, 3S0, 351. 3S4. 37i. 372. 

Minister of Foreign Affairs, 148. 

Minister of War, 148. 

Ministers of State, in P. Webster's plan, 148; their 
proposed functions, 148. 

Minnesota, Territory of, 289. 

Minnesota, admission of, 289; 286. 

Mississippi, Territory of, organized, 277; Georgia's 
claim to, 277, 278; slavery not prohibited in, 277; 
divided between Ala. and Miss., 277. 

Mississippi, admission of, 278; ordinance of secession, 
338; remodeled constitution of, passed upon by 
Supreme Court, 374. 37S- 

Mississippi River, free navigation of, secured by 
Louisiana Purchase, 274; land east of, nearly all 
settled by 1840, 286; 123, 208. 

Missouri, Territory of, 279-281. 

Missouri, admission of , 282; Dred Scott case origin- 
ated in, 291 ; 289. 

Missouri Compromise, terms of, 280, 281; made in- 
evitable the admission of a preponderating number 
of free states, 281; movement for repeal of, 288; in 
the Kansas-Nebraska Bill, 288; constitutionality of, 
and the decision in Dred Scott case, 290-292; 271, 
286, 329- 

Mobile, seized by U. S., 284. 

Mommsen, Theodor, History of Greece, iion. 

Monarchy, power of, revived under House of York, 
85 ; form assumed by, in France under Hugh Capet, 
reproduced in all subsequent European states, 114. 

MonopoUes, Emp. Zeno's edict against, 433; by royeJ 
patent under Edward VI and Elizabeth, 434; stat- 
ute of 21 James I against, 434; later English deci- 
sions more favorable to, 43s; attitude of American 
courts toward, 43s seqq. And see Trusts and mono- 
poUes. 

Monopolists and legitimate competitors, line between, 
450. 

" Monopolize," Morawetz's definition, 447, 451 ; mean- 
ing of, discussed, 450, 451; the question of degree, 
451. 

Monopoly, struggle of the masses against, 464. 

Monroe, President James, and ratification of the Con- 
stitution, 213; election as President, 282; submits 
Canning-Rush correspondence to Jefferson, 390; 
Jefferson's letter to, 390, 39i; his message of Dec., 
1823, 391. 392, 393; 80, 303, 396. 

Monroe Doctrine, the, genesis of, 274, 389, 390; its 
assertion forced by designs of Holy Alliance, 390; 
formulated in message of Dec., 1823, 391, 392; Jef- 
ferson and J. Q. Adams the real authors of, 393; its 
scope widened by Pres. Polk, in 1845, 393, 394; and 
French intervention in Mexico, 394; definition of, 
completed by Pres. Cleveland, 394. 395 ; its validity 
as a matter of international law, 395 ; extension of, 
since 1823, 395- 

Montague, Gilbert H., The Defects of the Sherman Anti- 
Trust Law, quoted, 43s, 438. 

Montesquieu, Charles de Secondat, Baron de, 146, 
361, 362. 

Montfort, Simon of, his Parliament of 1265, 83. 

Moody, Justice William H., opinion in Twining v. New 
Jersey, 82, 236, 366, 367, 369. 

Morawetz, Victor, The Supreme Court and the Anti- 
Trust Act, quoted, 443-447. 

Morgan, Lewis A., icon. 

Morkere, Earl of Northumbria, 64. 

Mormon Church, act of Congress disestablishing and 
annulUng its charter, held constitutional, 23on. 

Mormonism, 294. 

Morris, Gouverneur, on apportionment of taxation, 
198, 199; and the method of electing President and 
Vice-President, 205; final draft of Constitution is his 
work, 206; 44, 174, 179. 190, 226, 271, 347n., 415, 416. 



Morris, Robert, compared with Webster and Hamil- 
ton, 161; 41, 44, 174. 190, 226, 250. 
Muller, Max, quoted, 296. 
Muskingum, O., settlement of Ohio Company at, 269. 

Nagel, Charles, quoted, 465. 

Napoleon I, sells Louisiana province to U. S., 274; 
and the Code Napoleon, 466, 467. 

National Civic Federation, and its work for uniform- 
ity of legislation, 470, 471. 

National Republican party, name assumed by sup- 
porters of Adams in 1828, 283 ; later known as Whigs, 
283. 

National system, opposition to, after submission of 
Constitution to the states, 302. 

NationaUty, idea of, promoted by Louisiana Purchase, 
274; new conception of, and its effect, 301. 

Nations, modem, relations of, to their colonies, 378 
seqq. 

Naturalized foreigners, and the Hartford Convention, 
3IS. 

Navigation, covered by commerce clause, 416. 

Navigation Acts (British) of 1651, 379. 

Neal, James, 209. 

Nebraska, bill to organize Territory of, 288. 

Negro, the, in Florida, 284; main purpose of 14th 
Amendment to establish citizenship of, 351; dis- 
tinction between social and poUtical rights of, 356, 
357 ; right of suffrage given to, by 15th Amendment, 
372; in Alabama, 376. 

Negro slavery. See Slavery. 

Negro troops, employment of, authorized, 343. 

NeUson, John, 208. 

Nelson, Thomas, opposed to FedereJ Convention, 
178; 302. 

Netherlands, United Provinces of the, a confederated 
state, 116; powers of States-General, 116; weeikest 
part of their constitution, 117; gov't of, reorganized, 
117; the Batavian Republic born, 117; 20, 109, 118. 

Neutrality proclamation of 1793. 304. 

New England, opposed to " restrictive system," 313; 
sole rzdlying-point of Federalism in 1812, 312, 313; 
and the Hartford Convention, 313 seqq.; doctrine 
of secession rampant in, 326. 

New England colonies, respective roles of county and 
township in, loi, 102; conference of governors of, 
120; "consociation of," 119. See United Colonies 
of New England. 

New England Federalism, and the E^ex Junto, 312. 

New France, boundaries of, 123. 

New Hampshire, originally a proprietary gov't, but 
became a royal colony, 99; in ist Continental Con- 
gress, 127. 

New Hampshire, constitution of 1784, and ch. 39 of 
the Great Charter, 77; riots in, 167; ratifies Con- 
stitution, 212; opposed to Va. and Ky. Resolutions, 
311; and the Hartford Convention, 313. 314; I37. 
229, 273, 363. „ ^, 

"New Hampshire grants, the (Vermont), 272, 273. 

New Haven colony, 97, 119. 

New Jersey, colony of. and the Annapolis Convention, 
26; originally proprietary gov't, but became royal 
colony, 99; represented in Stamp Act Congress, 
125, and in ist Continental Congress, 127; 120. 

New Jersey, and the Articles of Confederation, 133. 
134; ratifies Constitution, 208; and the N. W. Ter- 
ritory, 255; last remnant of slavery in, 272; 137. IS7. 
167, 173, I99n., 229, 271. 

New Jersey plan, 38, 580-582; of no importance, 38; 
introduced by Paterson, 190. 191; simply proposed 
revision of Articles of Confederation, 191; in Com. 
of Detail, 200. And see Paterson, WiUiam. 

New Mexico, Territory of, 287, 386. 

New Netherland, 119. 

New Orleans, founded by the French, 1 23 ; battleof , 315. 

New York, colony of, originally a proprietary gov't, 
but became a royal colony, 99; manorial system 
retained in, 103 ; represented in Stamp Act Congress, 
125, 126, and in ist Continental Congress, 126, 127; 
120. 



INDEX 



669 



New York, her claim to western lands, 134; lays 
double duty on goods imported in British ships, 
166; defeats proposed amendment of Articles of 
Confederation empowering Congress to lay duties, 
168; opposes commerce clause of Constitution, 207; 
struggle in convention over ratification, 216-218; 
finally ratifies, 218; opposed to Va. and Ky. Reso- 
lutions, 311; commission to promote uniformity of 
legislation, 470; 137. 138, i57. 158, I73, 190, 229, 
271. 273, 302. 

New York City, Stamp Act Congress meets at, 124, 
12s; Congress assembles at, 159 and n., 220. 

Newspapers, and the call for the Federal Convention, 
los. 

Nicholas, George, fathered Jefferson's Kentucky 
Resolutions, 306, 308; 216. 

Nicholson, Joseph H., quoted, 38sn. 

Norman kings, entire administrative machinery of 
English Constitution originated in system of cen- 
tral gov't established during their reigns, 69. 

Norman superstructure and Teutonic substructure, 
fusion of, SI, 52, 69 seqq. 

Normandy, Duchy of, 64 seqq.; lost to England, 74. 

Normans, revolt against William II, 67. 

North, Frederick, Lord, Ministry of, carries Boston 
Port Bill, 125, 126; other bills carried by, 126. 

North, the, and the Dred Scott case, 293; and the 
protective tariff, 316; leaders of opinion in, made 
war on the Constitution itself by attacking Dred 
Scott decision, 330; unprepared for war and the 
consequences of victory, 342; reconstruction poUcy 
of, evolved gradually, 342. 

North American Review, I50n. 

North Briton, no. 45, 234. 

North Carolina, colony of, represented in lat Conti- 
nental Congress, 127. 

North Carolina, constitution of 1776, and ch. 39 of the 
Great Charter, 76, 362; power to annul statutes 
assumed by Supreme Court of, 104; decisive action 
of, in Federal Convention, 199 and n.; ratifies Con- 
stitution, 218, 219 and n.; anti-slavery feeUng in, 
254; ordinance of secession, 338; 137, 167, 173, 198, 
229, 271, 273. 

North Carolina Gazette, and the Mecklenburg Re- 
solves, 502. 

North Folk (Norfolk), 58. 

Northumbria, conquests of, 59. 

Northwest, increase of population in, before 1830, 
286. 

Northwestern Territory, taken from France, question 
of disposition of, and ratification of the Articles of 
Confederation, 134, 13s; claimants of, 134; Md. 
alone contends for national dominion over, 134; 
Md.'s contention established, 134, 255; and the 
Ordinance of 1787, 255 seqq.; divers Indian nations 
renounce claim of title in, 255, 256; states formed 
from, 256; Jefferson's plan for temporary gov't of, 
256, 257; slavery question in that plan, 256, 257; 
s^very excluded from Ordinance of 1787, by vote 
of slave-holding states, 258, 269, 270; gov't of, and 
Congress, 265; Ohio the first state formed in, 274; 
rapid increase of population in, 277; divided by 
Congress (1800), 277; government of, 382-384. 

Nott, Charles C., The Mystery of the Pinckney 
Draught, 9, 23, 33, 34. 36, 17S, I77, 201, 203. 

Nullification, the culmination of the doctrine of state 
sovereignty, 281; right of, asserted by both Ky. 
and Va. Resolutions, 307, 310; and the Hartford 
Convention, 315, 316; defined, 316, 317; doctrine 
of, first applied to practical politics by Calhoun, 
316 seqq.; banquet of April, 1830, 318, 319; not 
to be confused with doctrine of secession, 320, 321; 
Pres. Jackson's proclamation concerning, 320; not 
revived after 1833, 321. 

Nullification ordinance, passed by legislature of S. C, 
319; its enforcement suspended by private citizens, 
320; repealed by S. C. convention, 320. 

Offa, King of Mercia, 59. 

Ohio, Territory of, organized, 277. 



Ohio, admission of, 273, 274; first state in N. W. Ter- 
ritory, 274; 134. 256, 382. 

Ohio Company, purchase of lands by, 268, 269. 

" Ohio fever," 279. 

Ohio River, the, 123. 

Oldenburg, 53. 

Old-English Commonwealth, substructure of, 62; 
weakness of its superstructure, 63, 64. 

Order in Council (British) of July 2, 1783, 168. 

Orders in Coundl, 313. 

Ordinance of 1787, 255, 257 seqq.; reported by Com- 
mittee of Congress, 257 and n., 258; slavery not 
mentioned in first draft, 258; amended in that respect , 
258; a compact between the states, 258; Virginia's 
assent to, and its effect, 258, 259; laid foundation 
of colonial system of U. S., 265; restricted right of 
suffrage in, 267; praised by Webster and Madison, 
269; no constitutional authority for, 269; ratified 
by 1st Congress (Aug., 1789), 277; our first effort 
at colonial gov't, 382 seqq.; no hint of self -gov't in, 
383; full text of, 259-265. 

Ordinances, and the King in Council, 87. 

Oregon, Territory of, organized. 289; controversy with 
England concerning, 393, 394; 398. 

Oregon, history of, 289; admission of, 289. 

Orient, relations of U. S. with, 396 seqq.; trade and 
population of, 396, 397. 

Originsd packages, law as to, 428. 

Orleans Territory (southern part of province of Louisi- 
ana), 275; territorial gov't of, substantially a copy 
of system created by Ordinance of 1787, 275, 384; 
civil code of, 277; admitted to Union as Louisiana 
(1812), 276. 

Ottawas, and the N. W. Territory, 255. 

Oxford, council at, the first representative Parliament 
(1213), 82. 

Paca, William, 211. 

Pacific Coast in 1852, 398. 

Pagus. See Hundred. 

Paine, Thomas, Declaration of the Rights of Man, 462. 

Palgrave, Sir Francis, Rise and Progress of the English 
Commonwealth, in., 113; History of Normandy and 
England, in.; quoted, 15, 16. 

Panama Canal, building of, contemplated by Jeffer- 
son, 396; necessity of, 396. 

Papal supremacy, and Cromwell, 88. 

Paper-money craze, 168. 

Paris, Treaty of (1763), 124. 

Paris, Treaty of (1783), 156. 

Parish, the, ecclesiastical synonym of township under 
feudal system, loi, 102; in Va., 103. 

Parliament, first representative, at Oxford (12 13), 82; 
sole right to lay taxes acquired by, under Confirmatio 
cartarum, 84; divided into two houses under Exi- 
ward III, 84, 85; development of its power, 85; de- 
poses Edward II (1327), and Richard II (1399), 85; 
advance made by, between Norman Conquest and 
end of 14th century, 85 seqq.; and the Assembly of 
Estates, 87; increasingly important roleof Commons 
in, 87; impotence of, during Tudor and early Stuart 
reigns, 87; and Cromwell, 88; how regarded by 
colonists, 106, and by English statesmen, 106, 107; 
conflict of these theories the cause of the Revolu- 
tion, 107; repeals Stamp Act, but passes declara- 
tory act of full power over colonies, 125; importance 
of, in constitution-making, 298; omnipotence of, 
299; American colonists denied representation in, 
381; claims right to legislate on colonial concerns, 
381, 382. And see Long Parliament. 

Parliament of 1254, 83. 

Parliament of 1265 (Montfort's), 83. 

Parliament (Great) of 1295, completes transition from 
feudal council to council of estates, 83. 

Parliamentary system, collapse of, under House of 
Lancaster, 85; conflict between, and conciliar sys- 
tem, 90. 

Parsons, Samuel H., 268 and n. 

Parties, growth of, and changes in, in U. S., 1783-1820, 
281, 282. 



670 



INDEX 



Paterson, William, his " plan " simply proposed re- 
vision of Articles of Confederation, 22; 34, 36, 45, 
170, 174, 177, 190, 191, 196, 198, 226. 

Peckham, Justice Rufus W., opinion; in Pope v, Will- 
iams, 373, 374- 

Pell, Philip, only member of Continental Congress 
present at its last meeting, 268. 

Pendleton, Edmund, president of Virginia convention 
(1788), 213, 214; 126, 216. 

Penn, William, his plan for union of the colonies, 120, 
483. 

Pennsylvania, colony of, a proprietary gov't down to 
Revolution, "99; represented in Stamp Act Congress, 
I2S, and 1st Continental Congress, 127. 

Pennsylvania, constitution of 1776, and ch. 39 of the 
Great Charter, 76, 362, 363; tariff acts of, 160; 
opposes bicameral legislature, 179; ratifies Consti- 
tution, 208; and the excise tax, 303; whiskey insur- 
rection in, 303; and the Supreme Court, 333, 334; 
137, 138, IS7, 158, 167, 173, 19s, 199, 229. 

Perrin, John W., The German Social Democracy, 463n, 

Peters, Richard, 334. 

Petition, right of, and the ist Amendment, 232 and n. 

Petition of Right (1628), 223, 233, 297. 

Philadelphia, ist and 2d Continental Congress meet 
at (i774)t I2S. 129; Congress driven from, 159; tem- 
porary seat of government, 220. 

Philip II, 88. 

Philippine Islands, 396. 

Pierce, President Franklin, his election destroyed Whig 
party, 287, 288. 

Pilots and pilotage, and the commerce clause, 418. 

Pinckney, Charles, his Observations, 11; furnished copy 
of his plan for printing, but its exact text is in doubt, 
33. 34; quoted, 33, 341 and P. Webster's Disserta- 
tion, 40; his argument on the power of the execu- 
tive, i8r; on the New Jersey plan, 191; in legisla- 
ture of S. C, 211; and the commerce clause, 41S; 
14, 42, 44, 160, 162, 169, 170, 171. 172, 174, 226, 
250. And see Pinckney plan. 

Pinckney, Charles Cotesworth, on organization of 
Congress, 184; 44, 174, 197 and n., 198 n, 211, 212, 
248. 

Pinckney, Thomas, 212. 

" Pinckney plan," of Constitution the most import- 
ant before the Convention, 9; his " plan " all ready 
beforehand, 11 seqq., 22, 23, 24; its exact text in 
doubt, 33, 34; found in outline in Wilson MS., 35; 
the only plan actually presented to the Convention, 
36; was largely used in Com. of Detail, 36; pre- 
sented to the Convention, 176; compared with Vir- 
ginia plan, 176; criticized by Madison, 176, 177; 
contains the best version of P. Webster's invention, 
177; referred to Com. of Detail, 178, 200; divers 
points in, 180, 183, 184; by far the most complete, 
187; importance of, in estimating work of Com. of 
Detail, 201 seqq.; full text of, from the Madison 
Papers, 562-69. And see Nott, Charles C, and 
Pinckney, Charles. 

Pipe-lines, and the Act of 1910, 429. 

" Plans," three, for the work of the Federal Conven- 
tion, prepared before its meeting, 11 seqq.; sub- 
stantially identical, and drawn from a common 
source, 13, 22 seqq. 

Plantagenet, Geoffrey, 68. 

Plymouth, 92, 97. 

Plymouth, colony of, 119 and n. 

Plymouth Company, royal grant to, gr, 92; Plymouth 
settled by, 92; surrenders charter, 93; 278. 

Police power, and the "contract clause," 413. 

Political problems, transition from, to economic, 463 
seqq. 

Political science, America's first contribution to, 103. 

Polk, President James K., favors annexation of Texas, 
285; extends Monroe Doctrine, 393, 394. 

Pollock, Sir F., History of the Science of Politics, 308. 

Polybios, the Greece of, no and n. 

Population, effect of increase of, in the colonies, on 
the federation idea, 123; insisted on, by larger 
states, as basis of representation in bath houses. 



I9S; of the U. S., !n 1790, 272; comparative increase 
of, in Southwest and in Northwest, before 1830, 286. 

Porto Rico, after Spanish War (1898), 388; after 
Foraker Act {1900), 388, 389; 396. 

Postnati, case of the. See Calvin's case. 

Poughkeepsie, convention at, 217, 218. 

President of U. S., method of election of, under P. 
Webster's plan, 148; various plans for election of, 
204, 20S; report of Com. on Unfinished Portions, 
204n., 20s; method of election of, changed by 12th 
Amendment, 247 seqq.; Hartford Convention re- 
commends that he be not reeligible, 315; powerless 
to abolish slavery, 345; provisions of 14th Amend- 
ment concerning election of, 371; has unfettered 
power over conquered territory, 387. 

President-general of all the colonies, provided for in 
Coxe's and Franklin's plan for union, 121, 122. 

Presidential election of 1800, and the 12th Amend- 
ment, 248, 249; of 1876, 249, 250. 

Press, freedom of the. See Freedom of the Press. 

Princeton, Congress at, IS9 and n. 

Principes. See Magistrates. 

Privateers, American, commissioned by Genet, 304. 

Proprietary system of colonial gov't, 98, 99; the pri- 
mary assembly, 98, 99; supplanted by a representa- 
tive system, 99; the proprietors the medium through 
which the Crown granted self-government to the 
colonies, 99. 

Proprietors. See Proprietary system. 

Providence, 97. 

Public lands, the Confederation's only available source 
of funds, 256; declared to be public domain, etc., 256, 

Public opinion, influence of, in England and America, 
401. 

Punishment, cruel and unusual, prohibited by 8th 
Amendment, 242. 

Pure-food laws, and the commerce clause, 427. 

Puritans, persecution of, 402. 

Putnam, Rufus, and the public domain, 256; 268. 

Quebec, 123. 

Questions of fact. See Fact. 

Quincy, Josiah, on the right of secession, 323. 

Quota system, failure of, synchronous with Webster's 

invention, 155 seqq.; its last stage, 157, 158. And 

see Requisition system. 
Quotas, basis of the scheme of taxation in Coxe's and 

Franklin's plan, 122. 

Railway capitalization, first steps toward Federal con- 
trol of, 430; statistics of, 430, 431. 

Railway rates, fixed by Interstate Commerce Com., 
court may pass upon their reasonableness, 422, 425, 

Railway securities, national commission to investi- 
gate, 430. 

Railways, right of Congress to grant charters to, with- 
out consent of states, 420; traffic on, regulated by 
common law prior to Act of 1887, 421; objects of 
that act, 421, 422; interstate, liable to state regula- 
tion and taxation of strictly intrastate service, 426; 
systems of state statutes relating to, 433. 

Raleigh, Sir Walter, 89. 

Raleigh Tavern, 126. 

Randolph, Edmund, presents Virginia plan to the 
Convention, 22, 23, 174, 17s; Pres. of Congress, 
159; Madison's letter to, 17s, I77, 5SS; on the 
organization of the executive power, 181; his ten- 
tative draft of a constitution, 201, 202; quoted, 205, 
208, 213; converted by Washington, 213; and the 
authorship of the Virginia plan, 561; 34, 39, 43, 174, 
196, 198, 214, 216, 223, 250, 415. 

Randolph, John, 206, 277. 

Randolph, Peyton, Pres. of ist Continental Congress, 
126. 

Rawle, William, A View of the Constitution, 334, 325. 

Read, George, 174. 

" Recognitions," 71. 

Reconstruction, 343. 

Reeve, the. 61, 82, 84. 

Reeves, John, History of English Law, 343Q- 



INDEX 



671 



Reform bills (English), 297. 

Regrating, etc., statute of Edward IV against, 433. 

Religious denominations, split by slavery question, 
293. 294. 

Religious liberty, secured by ist Amendment, 230. 

Renaissance, the, in England. See English Renais- 
sance. 

Representation and taxation, correlative terms, 72. 

Representation in Congress, debate on basis of, 195 
seqq. 

Representative assembly, first in America, met at 
Jamestown, July, 1619, 96. 

Representative government, origin of, 82 ; collapse of, 
on Continent of Europe, 88. 

Representative system, germs of, in popular assem- 
blies of hundred and shire, 60; and the taxation of 
personal property, 72; two epochs of history of, 84. 

Representatives, House of, primitive machinery of, 
now overshadowed, 149; debate on election of mem- 
bers, 185, 186; basis of representation in, 197, 198, 
206, 207; and the election of 1800, 248, 249; pro- 
visions of 14th Amendment concerning elections, 
371; qualifications of electors of, prescribed by 
states, 372. 

Representatives of cities and boroughs first sum- 
moned to Montfort's ParUament, 83. 

RepubUc of U. S., the lineal descendant of ancient 
German tribal federations, 51. And see United 
States. 

Republican party (I), succeeded Anti-Federalist 
party, 282; practically unopposed in 1816 and 1820, 
282; in 1828, split into Democrats and National 
Republicans (Whigs), 283; and the quarrel with 
France (1793), 304, 305; and the Alien and Sedi- 
tion Laws, 30s, 306; its creed, 404. 

RepubUcan party (II), formed in 1854 by foes of 
Kansas-Nebraslia Bill, 294; led by Lincoln, 294. 

Requisition system, the, in federal unions, 20, 112, 
114, 115, 121, 122; defiked, 112; in the Netherlands, 
116; embodied in Articles of Confederation, 135. 
And see Quota system. 

Restraint of trade, early English law as to contracts 
in, 433. 434- 

Revolution, American, effect of, 18 ; origin of, 107, 382; 
delinquency of states during, described by Hamil- 
ton, 137, 138. 

Revolution of 1640, 78 seqq. 

Revolution of 1688, 78 seqq. 

Revolutionary debt, problem of defraying, 156 seqq. 

Rhode Island, a charter colony, 97; preserved its 
charter unaltered down to the Revolution and be- 
yond, to 1842, 98; sends delegates to Stamp Act 
Congress, 125; and to ist Continental Congress, 127. 

Rhode Island, alone among states refuses to give Con- 
gress power to levy duties, 144, 156; her refusal the 
death-knell of the Confederation, 157; a benefactor 
in disguise, 158; ratifies Constitution, 219 and n.; 
opposed to Va. and Ky. Resolutions, 311; and the 
Hartford Convention, 313, 314; 137, 229, 302. 

Rice, the, S7n., 58, 62n. 

Richard I, and Henry II's system of taxation, 72, 73. 

Richard III, 87. 

Richard the Fearless, Duke of Normandy, 65 and n. 

" Rights of Man," and Rousseau's Control Social the- 
ory, 322; 331. 

Rives, William C, Life and Times of Madison, 228. 

Rockingham Ministry, 125. 

Roger, Bishop of Salisbury, 68. 

Rolf, founder of the Duchy of Normandy, 64, 65. 

Rome, ancient, and her relation to her colonies, 377, 
378 and n. 

Roosevelt, President Theodore, administration of, 
and the Anti-Trust Act, 439 seqq.; on the distinc- 
tion between "good" smd "ibad " trusts, 441; 3in. 

Rousseau, Jean-Jacques, his Contrat Social and the 
French Revolution, 308; his theory now discredited, 
321; 311. 325. 328. 

Rowland, Life of George Mason, 561. 

Royal African Company, 254. 

Royal authority. See Kingship. 



Royal colonies in America, Virginia a type of, 95-97. 

Royal law and customary law, union of, 69. 

Ruggles, Timothy, 125. 

Runnymede, John sind the barons at, 75; 83, 84. 

Rush, Richard, correspondence with Canning, 390; 
133, 393n. 

Russia, and the northwest boundary of U. S., 393; 
and Manchurian railways, 400. 

Rutledge, John, supports Galloway plan, 128; chair- 
man of Com. of Detail, 200, 201, 202; his birth, his- 
tory, and attainments, 200; his amendments to Wil- 
son's draft, 203; submits report of committee, 203; 
34, 44, 126, 174, 181, i8sn., 196, 198, 212, 250, 415. 

St. Alban's, council at (1213), 74. 

St. Augustine, 283. 

St. Clair, Arthur, Pres. of Congress, 159. 

St. Clement's manor (Md.), last court-leet held at, 
102, 103. 

St. Edmund, abbey of, secret meeting of barons at 
(1214), 74. 

St. Lawrence River, the, 123. 

St. Paul's, council at, 74. 

"Saladin tithe" of 11 88, first case of taxation of per- 
sonal property, 72. 

Salem, trade of Boston transferred to, 126. 

Salisbury, Robert CecU, Marquis of, 394. 

Sandford, Mr., owner of Dred Scott, and defendant in 
Scott V. Sandford, 291, 292. 

Savigny, Friedrich Karl von, various works of, quoted, 
296, 300, 341, 402, 452. 

Saxons, 52, 53. And see Low-Dutch tribes. 

Science of poUtics, birthplace of, 109; founded by 
Aristotle, no. 

Scotland, right of accused to call witnesses in, 239. 

Scott, Dred, history of, 290 seqq. 

Scott, Wiafield, 319. 

Scott 0. Sandford, constitutionality of Missouri Com- 
promise the essence of the issue, 292; and the 13th 
Amendment, 293; conduct of those who refused to 
abide by decision was purely revolutionary, 329, 
330, 331; and Chief Justice Taney, 337, 338; Jus- 
tice Curtis's dissenting opinion in, 349, 350; deci- 
sion in, overturned by 14th Amendment, 351. See 
also in Table of Cases. 

Scuiage, instituted by Henry II, 72. 

Secession, doctrine of, and the Ky. and Va. Resolu- 
tions, 310; much more formidable than nullifica- 
tion as a means of dissolving the Union, 321; not 
appealed to in defense of slavery until exhaustion of 
slave territori', 322, 323, 326; first defined in print 
in Connecticut Courant (179s), 323; right of, tacitly 
admitted by Jefferson, 323; Jefferson and J. Quincy 
on expediency of, 323; spirit of, in Mass., 323, 324; 
Hartford Convention on, 324; views of J. R. Tucker 
and Judge Rawle, 324, 325; significance of early 
declarations, on the subject, 325; antecedents of the 
doctrine, 32s, 326; an extra-constitutional remedy, 

329, 330; attempts at, in 1860-61, 338 seqq. 
Secretary of State, 148, 227. 

Sedition L^w (1798), 304; its primary purpose, 305; 
no prosecutions under, 305; attacked by Ky. and 
Va. Resolutions, 306, 307. 

Self-incrimination, constitutional right to exemption 
from, due to Revolution of 1688, 79, 362; universal 
in American law, 79; provision of 5th Amendment 
concerning, construed by Supreme Court, 236; ex- 
emption from, not one of the fundamental rights 
of citizenship guaranteed by 14th Amendment, 369; 
doctrine of Twining v. New Jersey to this effect, 
doubted, 369. 

Seminole War, 284. 

Senate of U. S., method of election of, 184, i8s; report 
of com. on compromise of basis of representation 
in, 198; last struggle over that subject, 199; Presi- 
dent of, and the counting of the electoral vote, 250. 

Seville India House. See India House. 

Seward, William H., his " irrepressible conflict'" speech, 

330, 399. 400; 293, 394. 

Sbawnees, and the N. W. Territory, 255. 



672 



INDEX 



Shays's Rebellion, 167, 209. 

Sheldon, Gilbert, Archbishop of Canterbury, 84. 

Sheldonian compact, the, and taxation of the clergy, 
84. 

Sherman, Roger, and Bancroft's " Connecticut plan," 
37, 38; favors appointrjent of Executive by Con- 
gress, 182; on organization of Congress, 184, 185, 
186; opposes early amendments, 228; 9, 45. 127. 
179, 196, 226, 250. 

Sherman Anti-Trust Act, and the Supreme Court, 
298; provisions of, 432; how understood by its 
authors, 435, 436; construed literally by Supreme 
Court, regardless of consequences, 436, 437, 439; 
proceedings under, before 1897, 436; U. S. v. Knight 
Co., 298, 436, 437; and the "holding company," 
438; Northern Securities Co. Case, 298, 439. 440; 
ex-President Roosevelt on the working of, 441; 
characterized by Judge Lacombe in U. S. v. Amer- 
ican Tobacco Co., 442 ; reviewed and discussed by 
V. Morawetz, 443-447; problems arising under, still 
unsolved, 449 seqq. 

Shield-money. See Scutage. 

Shire, the, an aggregation of hundreds, 51, 57, 60, 99, 
100; origin of present English shires, 58; use of the 
word in modem sense, 60; other particulars con- 
cerning, 60; union of, became kingdom, 100. 

Shire court, 82, 84. 

Shire system, summarized, 62. 

Siberia, in 1852, 398, 399. 

Siete Partidas (codification of Spanish colonial law), 
380. 

Simon of Montfort. See Montfort. 

Six Nations, the, renounce claim to land west of the 
Ohio, 255; 121. 

Slave states admitted to Union before i860, 290; and 
the doctrine of secession, 326 and n. 

Slave-trade, in Virginia convention, 215; provision in 
Constitution concerning, 254; life of, limited by 
Constitution, 272. 

Slavery, complications caused by, in discussing basis 
of representation, 195; in the Constitution, 209 and 
n.; existed in every colony prior to Revolution, 253; 
and the compromises of the Constitution, 253, 254, 
2SS; doctrine of Sommersett's case, 253; first ap- 
pearance in America, 254; not popular except in B.C., 
and Ga., before invention of cotton-gin, 254; in 
Jefferson's plan for temporary gov't of N. W. Ter- 
ritory, 256, 257; prohibited there by amendment to 
Ordinance of 1787, 258, which was passed by votes 
of slave states, 269, 270; Jefferson's plan for extinc- 
tion of, 270, 271; conflict over, made inevitable by 
Ordinance of 1787, 271; existed originally by cus- 
tom, not by law, 272, 276; gradual abolition of, in 
Northern States, 272; and the Louisiana Purchase, 
274, 276; not prohibited in Miss., 278; battle for, to 
be fought beyond the Mississippi River, 279; and 
the Missouri Compromise, 280, 281, 287; admission 
of Florida and Texas the last possible extension of 
territorial limits of, 283; in Mexican state of Texas 
and Coahuila, 28s; in Texas enabling act, 285; after 
election of Polk became the burning question, 286; 
Mexican War a victory for, 286; extension of, in 
territories, its only hope, 288; the Kansas-Nebraska 
Bill, 288 seqq.; and the "squatter sovereignty" 
idea, 288, 289; and the Lincoln-Douglas debates, 
289; and the Dred Scott case, 290 seqq.; disruptive 
force of, 293, 294; an ally of the provincial spirit 
embodied in Articles of Confederation, 299; and 
the doctrine of secession, 322, 323, 326; abolition 
of Seward's "higher law," 330; precipitated Civil 
War, 342; in territories, abolished by Congress 
(1861), 343, and in District of Columbia (1862), 
344; and the Emancipation Proclamation, 343; not 
abolished thereby, 345, nor until ratification of 13th 
Amendment, 345, 346; must be supported by local 
police regulations, 344, 34s; abolition of, freed mas- 
ter as well as slave, 346, 347; legal effect of aboli- 
tion of, 347; 131, 198. 

Slaves, status of, in free countries, 253; at Jamestown, 
etc., 254; how reckoned in apportionment of Repre- 



sentatives in Congress, 254, 255; number of, inU. S., 
in 1790, 272; in Va., 272; in Ky., 273, 274; recog- 
nized as persons by Constitution, 272; three-fifths 
rule concerning, denounced by Hartford Conven- 
tion, 314; of owners engaged in the Civil War, freed, 
343 ; employed against government, claim of master 
to services of, declared forfeit, 343. 

Slaves, fugitive, provision of Constitution concern- 
ing, 2SS; in Ordinance of 1787, 258; return of, pro- 
hibited, 343. And see Fugitive Slave Law. 

Sleswick, 51, 53. 

Smith, Adam, Wealth of Nations, 170, 379. 

Smith, Melancthon, in N. Y. struggle over ratifica- 
tion, 217; 257. 

Sohm, Rudolph, and the German code of 1900, 467; 
SS. 69n. 

Somersaetas (Somerset), 58. 

Sommersett's case, doctrine of, and the Dred Scott 
case, 291, 292. 

South, the, at a loss for new slave territory, 288; and 
the attempt to buy Cuba, 288; and a protective 
tariff, 316; and the Union, 322, 323; secession be- 
comes part of policy of, 326; blighting effect of slav- 
ery on, 346, 347; advance of, in production, since 
the War, 347. 

South America, revolutionary governments and the 
Holy Alliance, 389; and the U. S., 396; western 
states of, in 1852, 398. 

South Carolina, colony of, represented in Stamp Act 
Congress, 125, and in ist Continental Congress, 127. 

South Carolina, constitution of 1778 and ch. 39 of the 
Great Charter, 77, 363; power to annul statutes, 
assumed by Supreme Court of, 104; ratifies Con- 
stitution, 211, 212; slavery regarded with favor in, 
254; and the slave-trade, 272; and nullification, 316 
seqq.; nullifying ordinance, passed by legislature of, 
319; ordinance of secession, 338; 137, 173, 199 and 
n., 229, 273, 302. 

South Folk (Suffolk), 58. 

Southern confederacy, intrigues for a, in Va. (1788), 
211, 212; crushed by S. C, 212, 213. 

Southern States, slavery excluded from N. W. Terri- 
tory by votes of, 269, 270 ; attempted secession of, 338. 

Southwest, increase of population in, before 1830, 286. 

Sovereignty, idea of, among Teutons, tribal, not ter- 
ritorial, 113; distinction between King of France 
and King of the Franks, 113; transition from tribsd 
to territorial, 113. 

Sovereignty, territorial, outcome of the process of 
feudalization, 113, 114; basis of all international 
relations, 114, 378. 

Spaight, Richard D., 45, 174. 218, 226, 250, 256. 

Spain, quarrel with, 168; and the Louisiana Purchase, 
274; and West Florida, 277; cedes Florida to Great 
Britain, 283; Florida ceded back to, 284; and Texas, 
284, 28s; conquests of, in America, the beginning 
of modem colonization, 379; colonial system of, 379, 
380, a commercial monopoly, 389; and the Panama 
Canal, 396. 

Speaker, title of, first given to Sir T. Hungerford, 84. 

Speaker of House of Representatives, abnormal pow- 
ers of, 149; committees first appointed by, in 4th 
Congress, 226. 

Speech, freedom of. See Freedom of speech. 

" Squatter sovereignty," and the Kansas-Nebraska 
Bill, 288, 289. 

Staatenbund. See Confederated states. 

Stadtholder, 117. 

Stamp Act, the, passed, 124; repealed, 125. 

Stamp Act Congress, declaration of rights and griev- 
ances of the colonies, 125, 495-496; petitions to the 
King, the Lords, and the Commons, 12s. 

Star Chamber, the, origin and history of, 87, 88 and n.; 
78, 79. 237. 360, 361, 362. 

State, the, ancient and modem conceptions of, 1 12, 
113, 378; growth of power of, in England and 
France, 403; a monster to be fettered by constitu- 
tions, 403; dread of power of, nurtured by French 
Revolution, 462; old dread of, discarded, 464, 465. 

State, Department of, 227. 



INDEX 



673 



State constitutions in U. S., epitomized the reformed 
English Constitution as defined by Blackstone, and 
transmitted its essence to the Constitution of the 
U. S., 79. 80. 

State courts, supremacy of U. S. Supreme Court over, 
declared by Chief Justice Marshall, 153, 154. 

State law, need of a typical code of, 471, 472. 

State sovereignty, extreme view of, culminated in 
dogma of nulUfication, 281, 317; modification of that 
view, 301; asserted by Ky. Resolutions, 306, 307; 
Calhoun on, 318. 

States of the U. S., English Constitution the political 
substructure of, 18, 19, 61; must be studied before 
studying the Union, 18; power to annul statutes 
assumed by highest courts of, 104, 457; had entire 
control of purse and sword under Articles of Con- 
federation, 136; also power to regulate commerce, 
137, and power of tsixation, 139; P. Webster on the 
folly of that system, 144, which was deep-rooted in 
pubHc favor, 145; "delinquency" of, during the 
Revolution, 137, 138; controversies between, re- 
ferred to Congress imder Articles of Confederation, 
152; P. Webster on reserved rights of, 154, 155; all 
except R. I. agree to amend Articles of Confedera- 
tion by authorizing Congress to raise revenue by 
lajdng duties, 156; commercial conflicts among, 166; 
no common sentiment of union in, 168, 299; pro- 
vincial spirit of, 168; debate on use of force against, 
by Federal Gov't, 180; equality of, recognized in 
provision concerning U. S. Senators, 184, 185; 
larger states prevail in Convention in matter of 
Representatives, 185, 186; unjust action of larger, 
on organization of Congress, 185, 186, 189, and in 
resolutions of Committee of the Whole, 189, 190; 
conflict between larger and smaller as to representa- 
tion in Senate, 194 seqq.; triumph of smaller states, 
199; constitutions of, frequently prefaced by bills 
of rights, 222, 243, 244; first 12 Amendments dic- 
tated by their j^ousy, 222, and "coined" from 
their bills of rights, 223; demand Amendments of 
Constitution to guard their rights, 237; reserved 
powers of, 245, 246; certain suits against, prohibited 
by nth Amendment, 246; Ordinance of 1787 a com- 
pact between, 258; and the N. W. Territory, 258, 
2S9; right to regulate suffrage reserved by, 267; 
formed out of foreign territory, admission of, 273; 
balance between slave and free destroyed by Mis- 
souri Compromise, 281. {See State sovereignty.) 
Love of local self-gov't strong in, at outset, 299; 
power of U. S. Supreme Court to annul laws of, 
332 seqq.; status of seceding, after the War, deter- 
mined by Texas v. ^^^lite, 339, 340; right of suffrage 
derived from, exclusively, 372, 373; and appoint- 
ment of presidential electors, 372; and qualifica- 
tions of electors of Representatives, 372; isth 
Amendment contains sole limitation on suffrage- 
control of, 373; power of, the bete noire of the ist 
Republican party, 404, and now hailed as dehverer, 
40s; dependence of individuals on, 405 seqq.; mul- 
tiplication of functions of, 407 ; and organized labor, 
407; and foreign commerce, 417, 418; have no con- 
trol of interstate commerce, 423, 424; control of, 
over intrastate commerce, 424, 425; police power 
of, and regulation of interstate commerce, 425, 426; 
inspection laws of, 426; power of, to regulate liquor 
traffic, 427, 428; laws against railroad pools and 
rate-discrimination, 433. 

States, new, provisions for admission of, 271, 272; 
Hartford Convention recommends change in those 
provisions, 314. 

States-General of France, 88 and n. 

States-General of the Netherlands, 116, 117. 

Statute law, forty-seven sources of, in U. S^ 469; im- 
mense mass of, 469. 

Statutes, power to annul, assumed by highest courts 
of states, 104, 105; not expressly conferred by any 
state constitution, 104; an American invention, 105; 
assumed by U. S. Supreme Court, 105. 

Steam, revolution wrought by appUcation of, to loco- 
motion, 300; effect of, on commerce, 337. 



Steamboats, 300. 

Stephen (King), England under his reign, 68; recog- 
nizes Henry Plantagenet as his heir, 68. 

Stephen, Sir James F., History of the Criminal Law of 
England, 238, 239, 363. 

Stillman, Samuel, 210. 

Story, Joseph, Commentary on the Constitution, 6, 7, 
244, 24s; fails to reveal the origin of the underlying 
theory of the Constitution, 7; on 9th Amendment, 
244, 24s; and the secession spirit in Mass., 323, 324. 

Stout, Thomas, i65n. 

Straus, Oscar S., 3 in. ,_ 

Strong, Caleb, 199, 226. 

Stuarts, the, and the Rebellion (1640), 90. 

Stubbs, William, Constitutional History of England, 
in., IS, s6, 57n., 6in^ 70, 113, 363; SeUU Charters, 
in., 71; Roger of Horeden, sgn. 

Style, Committee of. See Committee of Style. 

Suez Canal, 398. 

Suffrage, and representation in the lower House, 185, 
186; right to regulate, reser\'ed by states, 267, 372, 
373; restricted, provided by Ordinance of 1787, 267 ; 
right of, denied to es-slaves after 14th Amendment, 
371. 

Sullivan, John, 127, 128. 

Sumner, William G., The Financier and Finances of the 
Revolution, 161 and n. 

Sumter, Thomas, opposes ratification, 212. 

Supreme Court of U. S., first suggested by P. Webster, 
153; created by Judiciary Act of 1789, 226; first 
meeting in Washington (1801), 221; supremacy of,v> 
over state courts asserted by Marshall, 153, 154; 

it "assumes power to annul statutes for unconstitu- 
tionality, 105, 331; this power not conferred by 
Constitution, 331; Marbury v. Madison and 
Fletcher v. Peck, 331, 332; the supreme ultimate 
power in constitutional matters, 298, 299; construes 
"due process of law" in 5th and 14th Amendments, 
77, 78, 80, 81, 82, 367 ; its main business to construe 
and enforce ch. 39 of the Great Charter, as reem- 
bodied in those Etmendments, 78; its construction 
thereof criticized, 78, 365; rule of judicial inclusion 
and exclusion, 367, 450, 452; and the constitutional 
right of exemption from compulsory seLf-incrimin- 
ation, 79; indined to narrow its own jurisdiction, 
368, of whose scope it is the sole judge, 329, 330; 
and the ist Amendment, 230 and n., 231; and the 
2d Amendment, 233; its decision in Dred Scott case 
in perfect accord with the law as defined in the com- 
promises of the Constitution, 292, 293 and notes; 
had no power to abolish slavery, 293n.; its povr- 
ers in eclipse at first, 309, 332; abandoned by Jay, 
309. 332; attacked by Jefferson. 309, and rehabili- 
tated by Marshall, 310, who was its mouthpiece for 
34 years, 332; scope of Marshall's work as Chief 
Justice, 332; and the Civil War, 338 seqq., 342; the 
ultimate guardian of new national citizenship, 370, 
371; and the 15th Amendment, 373 seqq.; and the 
remodeled constitution of Miss., 374, 375; its func- 
tion in the growth of the Constitution, 408; still has 
a difficult problem to solve as to agreements in 
restraint of trade, 449 seqq. 

Sussex, 58. 

Swayne, Justice Noah H., 354. 

Swiss Cantons, confederation of, 109, 115. 

Swiss Constitution, and the Executive, 148, 149; 
wherein it resembles the Constitution of the U. S., 
149. 

Switzerland, 20. 

Tacitus, Cornelius, 53 seqq. 

Taft, President William H., on danger of literal con- 
struction of Anti-Trust Act, 441 ; proposes amend- 
ments, 441, 442. 

Taine, Hippolyte A., History of English Literature, 2St 
297. 

Tallmadge, James. 280. 

Taney, Chief Justice Roger B., his first opinion, 336, 
337; and the scope of admiralty jurisdiction, 337; 
and the Dred Scott case, 259, 337, 338; opinion In 



674 



INDEX 



Martin v. Waddell, i8, 19, 380; in Fleming r. Page, 
386, 387; in License Cases, 417, 418. 

Tariff of 1816, 316. 

Tariff of 1824, 316. 

Tariff of 1828, marks an era in history of economic 
legislation, 316; declared null by legislature of S. C, 
319. 

Tariff of 1832, declared null by legislature of S. C, 
319. 

Tariif of 1833. a compromise measure, followed by 
repeal of nullifying ordinance, 320. 

Tariff of 1842, 321. 

Tariff on imports, Congress should have power to 
levy, 144, 145. 

Tariff Question, became a political one in 1824, 316; 
sectioiuil division on, 316. 

Tariffs, state, of 1785, 166. 

Taxation, power of, never before bestowed on a fed- 
eral government, 4, 20, 139, 458, nor conceived 
of as an attribute of a federal system, 21 ; first sug- 
gested by P. Webster, 8, 9, 29, 143, 144, i4S; tlie 
cornerstone of the system of 1787, 21; defended by 
P. Webster, 47 ; laclc of provision for, in Articles of 
Confederation, a fatal defect, 136, 137, 139, 141; 
deep-rooted prejudice in favor of leaving it with 
the states, 14s; claimed by Parliament as to colo- 
nies, 381, 382. 

Until 1188, fell entirely on land, 72; personal 
property first made subject to, by Henry II, 72; 
and representation, correlative terms, 72; Henry 
Il's system of, as applied by Richard I, 72, 73; right 
of, without authority of nation, asserted by Ed- 
ward 1, 83; abandoned in tlie Confirmalio carlarum, 
83, 84; and the clergy, 84; in the Achaian League, 
III; m the United Netherlands, 116; purpose of 
British Government to impose on colonies without 
their consent, first indicated in 1754, 121, 123; sole 
power of originating given to lower branch of Con- 
gress, i98n. 

Taxes, direct, old three-fifths rule concerning, abol- 
ished by 14th Amendment, 37 1- And see Direct 
taxation. 

Taylor, John, of Caroline, 323. 

Taylor, President Zachary, and the admission of 
California, 287. 

Telegraph, the, 300. 

Telegraph companies, and control of, 419; and the Act 
of 1910, 429. 

Telephone companies, and the Act of 1910, 429. 

Temple, Sir William, Observations, etc., 117. 

Tennessee, admission of, 273; ordinance of secession, 
338. 

Territorial courts, not courts of U. S., 265, 266. 

Territorial government, oligarchical form of, 384; in 
Louisiana, 384; in Florida, 385; in Utah and New 
Mexico, 386. 

Territorial judiciary, tenure of, 38s. 

Territorial lands. See Public lands. 

Territorial ports, and the Louisiana Purchase, 384; 
387. 

Territories of U. S., governed as all other colonies in 
the world's history have been, 266; constitutional 
guaranties do not apply to, 387; stand in same rela- 
tion to general gov't that counties do to states, 387 ; 
Congress supreme over, 387, 388; not a part of the 
U. S., under the Constitution, 389. And see Colonial 
system of the U. S. 

Territory, a new political institution created by the 
Ordinance of 1787, 382. 

Territory acQuired by discovery, exclusive right to 
grant, a part of royal prerogative, 91. 

Test Act, 230. 

Teutonic democracy, the source of the Republic of the 
U.S., SI. 

Teutonic invaders of Britain, si, 62. 

Teutonic leagues, characteristic features of, 112 seqq. 

Teutonic political institutions, described by Caesar 
and Tacitus, 53 seqq.; how transferred to con- 
quered territory, 56. 

Teutonic settlements. See Low-Dutcli tribes. 



Teutonic state, See Civitas. 

Teutonic substructure and Norman superstructure, 
fusion of, 69 seqq. 

Teutonic system, the substructure of the government 
of England and of American states, 19. 

Texas, history of, 284, 285; admission of, based on 
Vermont precedent, 273; annexation of, led to 
Mexican War, 286, 393; ordinance of secession, 338. 

Texas and Coahuila, a Mexican state, 285; slavery 
not recognized in constitution of, but imported intOi 
28s; declares its independence of Mexico, 28s; inde- 
pendence of, recognized by U. S. and other powers, 
28s; annexation of, 285. 

Thegns, 61, 82. 

Thomas, Jesse B., and the Missouri Compromise, 281. 

Thompson, Charles, Sec. of Continental Congress, 268, 

Three estates, rise of the, 73. 

Thucydides, the Greece of, no. 

Thurston, Lorrin A., 399n. 

Tilden, Samuel J., and the election of 1876, 249, 250. 

Tocqueville, Alexis de, De la Dimocralie en AmSrique, 
2, 4, 9, 10, 18, 21 and n., 23, 30 and n., 42, 61, 97, 
100, 458; finds the Constitution based on "a wholly 
novel theory," but seeks not its origin or author- 
ship, 2. 

Toulouse, proposed expedition against, 71. 

Town-meeting, its prototypes, 102; 54, 55. 

Townships, union of, in England, became hundred, 99, 
and in America, county, 100; different aspects of, 
in different colonies, loi seqq.; under feudal system, 
loi; became parishes in territorial organization of 
the church, loi, 102; in New England, 102; in Md. 
and N. Y., 102, 103; in Va., 103; 51, 55. And see 
Mark. 

Trading-charters, 90. 

Travel in U. S., revolution in, caused by use of steam, 
300. 

Treason, constructive, and the trial of Burr, 251, 252. 

Treasury Department, 227. 

Treaty of April 30, 1803 (Louisiana Purchase), 275. 

Trenton, Congress at, 159 and n. 

Trial by jury, not guaranteed by the Great Charter, 
75 and n. And see Jury trials. 

Tronchet, M., and the Code Napoleon, 466, 467. 

Trusts and monopolies. Supreme Court omnipotent 
to decide fate of, 298. 

Tucker, J. Randolph, The Conslitulion, 259; as editor 
of Blackstone, on right of secession, 324. 

Tucker, Josiah, Dean of Gloucester, 169, 299, 300. 

Tun (township), 101. 

Tun-moot, 57, 60, loi, 102. 

Tupper, Benjamin, 268. 

Turgot, Anne-R.-J., Baron de I'Aulue, quoted, 1070., 
i26n. 

Turner, Sharon, History of the Anglo-Saxons, in. 

Tyler, John, opposes ratification, 213, 2is; 167. 

Unification of laws, the best mode of strengthening our 
national law, 473 seqq. 

Uniform Bills of Lading Act, 470. 

Uniform Negotiable Instruments Act, 470. 

Uniform Stock Transfer Act, 470. 

Uniform Warehouse Receipts Act, 470. 

Uniformity of laws, result of recent efforts to secure, 
470, 471. 

Union, first step on the way to (1765), 124; dim sense 
of, at outset of gov't, 299; slavery a potent influ- 
ence in retarding, 299; Penn's plan of, 483; Coxe's 
and Franklin's plan of, 484-494. 

Union, the, defined by Chief Justice Chase in Texas 
V. White, 340. 

United Colonies of New England, their articles of 
confederation, 119 and n., 477 seqq. 

United States, foundations of, laid, 89; how built up, 
100; founders of, and their acquaintance with earlier 
federal governments, in, 112; population of, in 
1790, 1900, and 1910, 299, 398, 453-456; area of, in 
1790, 1900, and 1910, 299, 398, 453-456; rate of 
increase in population, 457 ; inferiority of, at outset, 
303; the neutrality proclamation of 1793, 304; rela- 



; I 



INDEX 



675 



tions with France, under John Adams, 304 seqq.; ■■ 
how forced into assertion of Monroe Doctrine, 3S9, 
390; relations with the Orient, 396, 397; expansion ' 
of, 398, 453; already involved in Oriental problems, . 
400, 401; the Manchurian railway question, 400; | 
importance of firm alUance with England, 401; ter- ! 
ritorial acquisitions, 454; outcome of its growth a | 
new type of state and of federal gov't, 459; a gov't 1 
without citizens until 14th Amendment, 461. i 

United States r. Knight Co., decision of, paralyzed 
Anti-Trust Act, 298. 

United States t'. Northern Securities Co., decision of, 
gave full effect to Anti-Trust Act, 298. 

United States Steel Corporation, 438. 

Utah Territor>', Mormonism in, 294; 287, 386. 

Van Buren, President Martin, opposes annexation of 
Texas, 285. 

Venezuela, United States of, U. S. type of federal 
union reproduced in, 459; dispute with England 
over boundarj', 394, 395. 

Vergennes, Charles Gravier, Comte de, 208. 

Vermont, admission of , 271, 272, 273; constitution of 
1777-79 and ch. 39 of the Great Charter, 77, 363; 
riots in, i57; never any slaves in, 272; formed of 
territory claimed by N. Y. and N. H., 273; grounds 
of southern opposition to her admission, 273; op- 
posed to Ky. and Va. Resolutions, 311; and the 
Hartford Convention, 313, 314; 229. 

Vertot d'Aubceuf, Abbe R.-A. de, 6. 

Vestry, the, loi, 102, 103. 

Veto power, 182, 202. 

Vice-President, method of electing, 204, 205; changed 
by i2th Amendment, 247 seqq. 

Vicxts. See VUIage. 

Vienna, Congress of (1815), 115. 

Village, the, 54. 

Vining, John, opposed early amendments to Consti- 
tution, 228. 

Virginia, colony of, a typical royal colony, 95-97; evo- 
lution of, from a servile corporation to a self-govern- 
ing state, 95-97; resident council of, 95, 96; first 
representative assembly in America met at James- 
town (1619), 96; its external organization and the 
old EngUsh Constitution, 96; survived as royal col- 
ony after annulment of London Compemy's charter, 
96 ; parish system retained in , 1 03 ; suggests first Con- 
tinental Congress, 125, and is represented in it, 126; 
House of Burgesses of, and Boston Port Bill, 126; 
dissolved by Lord Dunmore, the House reassembles 
and issues call for general congress, 126; 6r and n., 
120. 

Virginia, issues call for convention of states (1786), 25; 
constitution of 1776 and ch. 39 of the Great Char- 
ter, 76, 77, 363; power to annul statutes assumed 
by her Court of Appeals, 104; her claim to western 
lands, 134; Bill of Rights of (1776), first formulated 
the dogma of division of powers, 147, 361, 362, 510- 
512; legislature of, favors joint action of states to 
regulate commerce, 167; and the unjust treatment 
of the smaller states, 190; opposition to Constitu- 
tion in, 208; anti-Federalists in, intrigue for South- 
em confederacy, 211 ; struggle over ratification, 213- 
216; finally ratifies, 216; slaverj* forced upon, 254; 
anti-slavery feeling in, 254; and the N. W. Terri- 
tory, 25s ; significance of her assent to Ordinance of 
1787. 258, 259, 269, 270; compact with Ky., 273; 
her land laws perpetuated in Ky., 273; and the 
excise tax, 303; ordinance of secession, 338; and the 
Emancipation Proclamation, 344, 345; 137, 173, 
195. 199. 229, 256, 271, 273. 

Virginia Court of Appeals, 104, 154. 

" Virginia plan," drawn before the Convention met, 
II seqq.; exact text of, in doubt, 34; presented to 
Convention by Edmund Randolph, 174-176; 
though general and abstract, it embodied " the 
great invention," 175, 176; referred to committee, 
176; provision in, for national Executive, 180, 181, 
and concerning a judiciary, 182, 183; afforded no 
assistance to Com. of Detail, 201; supposed text of, 



550-552; discussion as to authorship of, 552-561. 
And see Madison, James. 

Virginia Resolutions (1798), ostensibly drawn by 
Madison, 307 ; Jefferson the real author of, 308, 309; 
sent to all Representatives in Congress, and to other 
states, 311; only replies to, were antagonistic, 311; 
reflected in report of Hartford Convention, 314; 
Hayne's defense.of nuUification based on, 317 ; bale- 
ful influence of, down to 1861, 322; 328, 336, 340. 

Virginia and Maryland, joint commissioners of, 165, 
166. 

Von Hoist, Hermann E., Constiluiional and PoUlical 
History of the U. S., 2, 3, 11, 22; ridicules " inspira- 
tion theory," but seeks not the origin or author of 
" the great discoverj'," 3. 

Voting, manner of, in Congress, prescribed by Arti- 
cles of Confederation, 132 seqq. 

Wadsworth, James, 209. 

Waite, Chief Justice Morrison R., opinion in First 
Nat. Bk. V. Yankton, 387, 388; in Stone r. Miss., 
412; 374- 

WaUingford, Treaty of, 68, 69 and n. 

War, declaration of, Hartford Convention recom- 
mends change concerning, 315. 

War Department, 227. 

War, Minister of. See Minister of War. 

War of 1812, 284, 312, 313. 

War power, and the Emancipation Proclamation, 344, 

Washington, Booker T., 376. 

Washington, George, records of Federal Convention 
committed to, 5, 32; and the calling of the Federal 
Convention, 165 and n.; and the power to regulate 
commerce, 166 and n.; elected president of Conven- 
tion, 174; Madison's letter to, 175; his only speech 
in the Convention, 206, 207 ; his letter as president 
leiid before the Convention, 207 ; converts Edmund 
Randolph, 213; P. Webster's relation to, 219; 
elected first President of U. S., 220; his influence 
assured ratification of the Constitution, 302, 303; 
quells the whiskey insurrection, 303; and foreign 
affairs, 303, 304; neutrality proclamation of 1793, 
304; the king of the Federalists, 304; his farewell 
address quoted, 473; 21, 39, 4in., 43, 125, 126, 157 
and n., 171, 173, 174, 178, 211, 250, 256, 269, 312. 

Washington, D. C, seat of government fixed at, 200. 

Washington Territor>-, in 1852, 398. 

WajTQe, Justice James M., 259. 

Webster, Daniel, and the proper use of the mails, 231 ; 
on the Ordinance of 1787, 269; on nulUfication and 
the Hartford Convention, 315, 316; abandons free 
trade (1824), 316; his debate with Hayne, 316-318; 
his reply to Calhoun's nullification speech, 328; a 
disciple of John Marshall, 336; ridicules proposed 
extension of Constitution to territories, 386; 39n., 
318, 319. 329. 

Webster, Ebenezer, father of Daniel, opposed to rati- 
fication of Constitution, 212. 

Webster, Noah, 39n. 

Webster, Pelatiah, his birth and history, 27; his 
Essays on Free Trade and Finance, Essay on Credit, 
etc., 27, 28; his Political Essays the leading author- 
ity on the finances of the period, 28; his petition for 
the deranged officers, 28 and n. ; his purpose, to con- 
struct an entirely new federal fabric, with power of 
taxation, 28, 29; the father of the e.xisting Constitu- 
tion, 31, 468; on the circumstances under which his 
Dissertation was written, 38, 39; his self-sacrificing 
patriotism, 46; records of the Convention a sealed 
book to him, 46, 47 ; was foremost to defend the new 
Constitution, 46, 47 and n., 48, 6o3n.; text of his 
paper in that behalf (Oct., 1787), 603-609; replies to 
" Brutus," 48, 49; republishes the Dissertation, with 
notes (1791), 49, 50; his appeal to posterity, 50; in 
1781, proposed entire change of s>'stem of gov't, 
140, 141; his exposure of the weakness of the Arti- 
cles of Confederation, 141-143; his "epoch-making 
invention" of Feb. 16, 1783, 343 seqq.; his inven- 
tion synonymous with failure of the quota system, 
15s seqq.; his pamphlet, where printed, isSn.; and 



676 



INDEX 



Hamilton, Prof. Sumner on, i6i; how he forced the 
calling of the Convention, i6r, 162; his suggestion 
of a tripartite federal gov't adopted as basis of 
report of Committee of the Whole, 179; his relation 
to Washington, 219; blazed the way for Marshall's 
judicial work, 334; 250, 468. 

His Dissertation on the Political Union and Con- 
stitution of the Thirteen United States of North Amer- 
ica, published Feb. 16, 1783. 7. 8, 12, 143 seqq.; 
G. T. Curtis 's ignorance of, 7, 8; Geo. Bancroft con- 
cerning, 8; contains first suggestion in history of a 
federal gov't with power to tax, 8, 9j promulgates 
the "great discovery" embodied in the three 
"plans," 14, IS, 24; republished in 1787, 14; its in- 
fluence does not extend beyond the work of the 
Convention, 16; republication of, by Congress, and 
its effect, 17; contains the entire plan of the Con- 
stitution, worked out four years beforehsind, 24; 
as authentic as the Constitution itself, 24; when 
reprinted in 1899, was entirely unknown, 24; credit 
given to, by Madison, 27 and n.; analyzed, 29 seqq.; 
its four elements, 29; on delegated powers, 30; on 
the commercial aspect of affairs, 30, 31; spread 
broadcast in Phila., in Feb., 1783, 40; must have 
been familiar to Madison, Hamilton, and Pinckney, 
40; quoted, 46; effect of, on subsequent proceedings 
of Congress, 41 ; declares federal power of taxation 
the first necessity, 143, 144, 14s; on import duties, 
144, 14s; first proposes division of a federal state 
into departments, 147; plan proposed for Execu- 
tive Department, 148; urges close connection be- 
tween Legislative and Executive Departments, 149; 
recommends bicameral congress, 150, 151; how 
members should be chosen, 151; denounces three- 
year limitation of service, 151; on powers of Congress, 
151, 152; on absence of provision for federal judi- 
ciary in Articles of Confederation, 152; proposes 
creation of Supreme and inferior courts, 153, 182; 
and the reserved rights of the states, 154, 155; his 

' statement thereon more ample than loth Amend- 
ment, iss; suggestion of, concerning the supreme 
executive power, 180; on the relation between the 
federal power and the states, 224; on express and 
implied powers, 24s; full text of, 527-546; notes to 
second edition of, 547-549. 

Wellington, Arthur Wellesley, Duke of, on martial 
law, 344. 345. 

Welsh population, massed in territory unconquered 
by, Teutonic tribes, 57. 

Wessex, shire system attained its earliest and purest 
development in, 58; supremacy of, finally estab- 
lished (82s), 59. 

West Florida, 277. 

West Indies, commerce of, 396. 

West Saxon. See Wessex. 

Westminster became the seat of government under 
Edward I, 84. 

Westphalia, 53; Treaty of, iis, 117. 

Whig party, name finally assumed by opponents of 
Jackson, 283; its policies and supporters, 283; de- 
stroyed by election of 1852, 287, 288, 294. 

Whigs, the only party in U. S., in 1783. 281; In Free- 
Soil party, 287; convention of, at Baltimore, 287. 

White, Chief Justice Edward D., dissenting opinion 
in Northern Securities case, 440. 



Whitney, Eli, and the cotton-gin, 254. 

Wilkes, John, and general warrants, 234 

William I (the Conqueror), his victory at Hastings, 
66; under his rule a real national unity attained, 
66 seqq.; a national king, 66; retains the laws and 
institutions of Eadward, 66, 67 ; all landholders his 
tenants, 67 ; his system of a central government re- 
stored by treaty of Wallingford, 68. 

William II (Rufus), crushes Norman revolt with aid 
of EngUsh subjects, 67. 

William V (of Orange), the last Stadtholder, 117. 

William and Mary College, 80. 

Williamson, Hugh, saves the Convention from disso- 
lution, 45; 174, 226. 

Wilmot, David, introduces his " Proviso " (1846), 
287. 

Wilmot Proviso, as to slavery in newly acquired ter- 
ritory, 287; failed to pass, 287; created the Free- 
Soil party, 287. 

Wilsaetas (Wilts), 58. 

Wilson, James, on the organization of the executive 
power, 181; favors popular election of President, 
181; and the judiciary, 183, 184; on organization of 
Congress, 184; on New Jersey plan, 191; on basis 
of representation, 195, 196, 197; on Committee of 
Detail, 200, 201 ; his recently discovered dreifts of 
the Constitution, 202, 203; 44, 132, 174. I94. 250, 
303. 

Wilson, Woodrow, on the Colossus of business, 464. 

Winsor, Justin, Narrative and Critical History of 
America, i05n. 

Winthrop, John, 402. 

Wirt, William, 4i6n. 

Wisconsin Territory, history of, 286. 

Wisconsin, admission of, 286; Dred Scott in, 291, 292; 
134. 256, 382. 

Witan, the. See Witenagemote. 

Witenagemote (meeting of the wise) , and the kingship, 
62; constitution of, 63; the national assembly of 
the heptarchic states, 63 ; William I chosen king by, 
66; Henry I chosen king by, 67; clergy in member- 
ship of, under Henry I, 68; becomes the Magnum 
Concilium, 68. 

Witherspoon, John, 132, 133, 208. 

Witnesses, right of accused to be confronted with, 238 
seqq.; right of accused to call, in various jurisdic- 
tions, 239. 

Woden, fabled descent of kings of Britain from, 62 
and n. 

Wolsey, Thomas, Cardinal, 88. 

Wyandotte Constitution (Kansas), 295. 

Wyandottes, and the N. W. Territory, 255. 

Wythe, George, opinion of, in Commonwealth v. Caton 
(Va.), 104; 43, 44, 80, 105, 174. "250, 271. 

" X. Y. Z." dispatches, 304. 

Yale University, and P. Webster, 17. 

Yates, Robert, and P. Webster, 48, 49; his notes con- 
cerning Pinckney plan, 176; throws over Hamilton 
plan, 200; 14, 15, 36, 174, 198, 216, 217, 250. 

York, House of, accession of, 87. 

York, Pa., Congress at, I59n. 

Zeno, Emperor, edict of, against monopoUes, 433. 



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LIBRARY OF CONGRESS 




